The Newspaperman and the Law

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THE NEW SPAPERM AN AND THE LAW

T he N e w s p a p e r m a n and

T he L a w A dissertation, submitted in partial fulfillment of the requirements for the degree of Doctor ofwPhilosophy, in the field of l^ss C ommun icatioris in the Graduate College of the StateUniversity of Iowa August, 19^0 By WALTER A. STEIGLEMAN-. Associate Professor of Journalism, State University of Iowa

F orm erly on Staff of Press Services an d N ew sp a p ers in H arrisburg, P a P h ila d e lp h ia , P ittsbu rgh > N e w York, and W ashington.

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C. BROWN COMPANY P u b l i s h e r s

DUBUQUE, IOWA

ProQuest N um ber: 10907184

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THE MODERN NEWSPAPER MANAGEMENT SERIES JOHN SCOTT DAVENPORT, Editor

C 6 P Y R £ £ ; t a 1950 CV *•

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W A L T E R *A . ' STE IG L -& M A N

AU rig h ts reserved . T h is b o o k, or parts th e re o f, m a y n o t b e r e p ro d u c e d in any fo r m w ith o u t w r itte n p e rm issio n o f th e a u th o r.

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TABLE OF CONTENTS

SECTION ONE —“The Origin and Growth of Press Laws” 1 “How to Find a Law or Court Decision”...................................... 2 Chapter: I. “Introduction” . .............................................................................. 3 II. “The Nature of Law”......................................................... 7 III. “Types of ^aws Affecting the Press”................................ 17 IV. “What Is Freedom of the Press?”............................................ 31 V. “Problems of News and Newsgathering”............................ 50 SECTION TWO —“Rights and Privileges of the Press'. . . . . . . 63 Chapter: VI. “Reporting the Federal Government”..................................... 65 VII. “Reporting State Governments”................................................ 83 VIII. “Public Records as News Sources”.......................................... 95 . IX. “Reporting Crime and the Courts”...........................................117 X. “Limits of Criticism—Public Officials and Performances”. 133 XI. “Limits of Criticism —The Courts”..................... 152 XII. “Limits of Criticism —Constructive Contempt”.................. 167 XIII. “The Right to Print the News”....................................................185 .XIV. “Protecting the Sources of News”.......................................... . 106 XV. “Photographs and the Laws”........................................................211 SECTION THREE - “Restrictions on the Press”................................ 235 Chapter: XVI. “The Origin and Nature of Libel Laws”............................... 237 XVII. “Intent and Responsibility in Libel”........................................ 251 XVIII. “The Three Elements in Libel”................................................. 270 XIX. “How the Laws of Libel Operate”........................................ 286 XX. “Defenses in Libel”..........................................................................308 f f l . “Restrictions on Use of Names”................................................. 333 XJEfl. “Post Office Regulations”............................................................ 342 SECTION FOUR —“Advertising and Radio”.......................................351 Chapter: XXIH. “Advertising —Rights and Restrictions” ................................. 353 XXIV. “Radio —Rights and Restrictions” .............................................361 SECTION'FIVE' —“Legal Problems of the Future”............................387 Chapter: -XXV* “Conclusion” ..................................................................................... 389 Footnotes Section ............................................................................................ 399 Index .....................................................................................................................421 v

P re fa c e There are many good books on newspaper law. They have come from teachers of journalism and of law, practicing law­ yers, newspapermen, and from authors fortunate enough to pos­ sess training and experience in two or more of these fields. Why, then, should there be another book on the same sub­ ject? The reasons must lie in the author's own appraisal of the situation. My experiences on newspapers and in classrooms have led me to the conclusion that w h a t is n e e d e d is b o th a n e w th e s is a n d a n e w p r e s e n ta tio n . It seems to be that too often law of the press is studied as an isolated phenomenon affecting only the newspaper and the legal system. More practical value, I feel, comes when law of the press is recognized as merely one phase of an organized system of social control. Too much emphasis also has been placed on the negative side of law. Often the study of newspaper law is merely a re­ cital of the prohibitions and restraints which it exercises against complete freedom of publication. Law also has a positive side. But even more important than a negative or positive approach to law is an examination of the reasons for both. The whole problem of law as it affects all aspects of journal­ ism has been accentuated by the coming of mass communica­ tions. New problems have arisen which must be recognized, examined, and interpreted, both in the interests of the press and of society as a whole. This new interpretation must stress responsibilities as much as rights and privileges. For the social implications of the law are just as important today as the strict legal implications. Law of the press must be rid of its mystery and specialized language and re-examined in the light of the functions for which society created it. The newspaperman, beginner or veteran,

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THE NEWSPAPERMAN A N D THE LAW

must be asked to accept law as not merely a series of “do s and “don’ts,” but as a long-planned method of social control. ^ He should be asked also to cease to regard law as his "enemy and accept it as his partner in order that both together may do their part in maintaining order, stability, and regularity in society. This partnership, however, must not be one of “conspiracy” against society or die individual, nor should it be one of mutual acquiescence in the mistakes or short-sightedness of each partner. At times, the press has chafed at the law’s seemingly greater concern for form and ritual than for the best interests of a dy­ namic society. The law, in turn, has shown impatience at per­ sistence of journalism in believing it is more in touch with the needs and wishes of the people than the venerable legal insti­ tutions. Modem society needs both stability and malleability. The thesis of this book, then, is that the law, like joumal3ism, is a social agency. Both were created by society to serve 1its needs, and both are entitled to those prerogatives only which \jwill accrue to the advantage of the group as a whole. Resolu­ tion of conflicts between the law and the press must not be re­ garded as victories or defeats for either, but only as gains for society. The new keyword for law of the press is neither rights nor privileges, but—responsibilities. In presentation, what seems to be needed is, first, an explana­ tion of the origin and development of the whole legal system. For what purposes was it designed? Why did society feel it had a need for such a system? No one can understand a specific phase of the legal system —such as newspaper law—until he knows the general nature of the whole institution of law. For that reason, the early chapters are devoted to such a discussion. Freedom of the press, too, has only a partial meaning to those unfamiliar with the underlying principles. W hy did society grant to the press immunities given to no other institution? The second need seems to be for a presentation that will relate the functions of the law to its direct application to spe­ cific circumstances. And, finally, the presentation should be legal but not “legalistic.”

PREFACE

ix

For these reasons, the stress in this book is upon continuity of related phases. For example, the coverage of courts involves contempt, privacy, libel, fair comment, and other aspects which custom seems to have placed in isolated and "water-tight” com­ partments. Rather than scatter such particular phases of the same problem throughout the book, I have placed them together so that the rights and privileges and responsibilities in covering courts begin with the commission of the crime and continue right through the final disposition of the case. Other problems have been organized in a similar manner. As far as possible, the presentation aims to develop the prob­ lems as reporters would find them on their day-to-day beats, ranging from covering Congress down to reporting the meeting of a service club in a small community. One annoyance common to practicing newspapermen and students alike is to find that definitive answers are not given in all cases. There are a number of reasons for this apparent de­ fect. All law cases are not carried to final conclusion. News­ papers, knowing libel suits are expensive to win as well as to lose, often are reluctant to let the issue go to the courts if the other party is at all reasonable. A sense of fair play brings from many newspapers prompt contrition and the complainant is satisfied. - 1 Another annoyance to newspapermen or students is for them \ to discover that cases which seem similar produce varying opin­ ions from the courts. One reason is that each state has its own legal system arid, in addition, there is a federal jurisdiction. Prin­ ciples of law are rather uniform, but interpretations of particu­ lar applications may vary. A further reason is that no two cases really are exactly alike. For example, the same case may involve both libel and the invasion of privacy. One court may elect to let the issue stand on libel; another court might have decided that privacy was the better cause for action. r Then, too, cases differ because of evidence permitted to be introduced) And they differ also in the manner in which the attorneys present them and the varying weight which juries give to what looks to be identical evidence. Judges, attorneys, and

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THE NEWSPAPERMAN A N D THE LAW

jurors also are not detached from the world, and changing social conditions often are reflected in the courtroom. Although the emphasis in this work is upon newspapers, much of the material applies also to radio. The problems peculiar to radio only are dealt with in a comprehensive chapter. * # In the preparation of this book, I had the advice and en­ couragement of a number of men at the State University of Iowa. Professors Norman C. Meier and Harold W. Saunders were helpful in making me see the social aspects of law, Profes­ sors Leslie G. Moeller and Arthur M. Barnes in the general subject matter and arrangement, and Professor James Jordan in the legal interpretations. Over a period of years, Professor Frank Thayer of the Uni­ versity of Wisconsin has encouraged me in a serious study of the subject, and Wray E. Fleming, general counsel for the Hoosier State Press Association, from time to time has been most helpful in his interpretations of various aspects of the whole field of law of the press. None of these men, naturally, bears any responsibility for the views, expressions, or interpretations in this book. That re­ sponsibility is mine alone. -W A S Iowa City, Iowa June, 1950

SECTION I "T he O rigin a n d G row th of P re ss Laws"

H ow to Find a Law o r C o u rt D ecision One doesn’t have to be a lawyer to look up specific laws for himself or to determine what a court actually ruled in a given case. The constitutions of the United States and of the several states are generally available in newspaper morgues and public libraries. Each state (and the federal government) has a compila- p3 tion of its laws called a code. Some codes bear the name of the state and others still go by the name of an early com­ piler or publisher, such as B u rn s C o d e A n n o ta te d . Any law­ yer has a copy of the state code. The indexing generally is poor and laws affecting the press may be listed under newspapers, publication, printing, press, etc. Since judges draw upon precedents, past court decisions are important. Each state and the United States has iff major decisions filed in so-called .Reporter Series. In ad­ dition, there are regional reporter series such as Atlantic, Northeast, etc. County law libraries will have these series. The citation (or reference) is important in looking up a decision. Cases are cited this way: 23 Fla. 341. That means Volume 23 of the Florida reports, page 341. Or 23 N.E. 645 which means Volume 23 Northeast Reports, page 645. Each decision is preceded with explanatory material set­ ting out sharply the points of law involved and how the court ruled on each. In addition, the decision generally re­ views the circumstances over which the case arose. The language at times is stilted and “legalistic,” but surprisingly enough, the courts usually get right down to earth in their discussions.

CHAPTER /

"In tro d u ctio n " A newspaperman once said that a good reporter knows 95 per cent of everything and knows where to find the other 5 per cent in a hurry. In the 5 per cent unknown sector no subject bulks larger than law. Many reporters and copy readers try to blaze their way through this unknown area by the insertion of a generous number of “alleged Y’ and “it was reported’s,” and then are amazed when the story explodes in their faces. The law of the press has two fundamental aspects. In its narrow sense, law tells the newspaperman what he can do and what he cannot do. Even in this narrow area, newspapermen trudge along many times without realizing that beneath what appears to be solid ground is a layer of quicksand. In its broader view, law, either directly or by implication, has wide social aspects that point up the responsibilities which society is becoming more insistent that the newspaper meet now that the press has become communicator to the masses. The Supreme Court’s decision in the government’s anti-trust suit against the Associated Press, for example, is not nearly so important for the specific issues which it decided as for the social implications. For the first time, a high court called at­ tention to the fact that the press must recognize duties to the group at large as well to the individual. Justice Frankfurter, who concurred with the majority, went even further and insisted that the press recognize a public ser­ vice function. Society, too, is becoming more insistent that the First Amendment is not a fortification erected to permit an en­ trenched press to go its independent way, but rather that the Amendment is a common bulwark behind which both society and the press can protect the liberties of all.

4

THE NEWSPAPERMAN A N D THE LAW

Only a few critics thus far have expressed openly the con­ viction that the change must come from the group itself speak­ ing through mandatory laws rather than leaving the method to the conscience of the newspapers themselves. But if from a lack of understanding of its social responsibilities or if from in­ ertia or editorial cQnfurnac^, the press should forfeit its chance, these critics may sweep on to full advantage. In that event, it is not unlikely that these critics by so cheerfully accepting ^/government aid may awaken to find a yoke around their necks far more burdensome than the faults of which they now com­ plain. Too late they may discover they have destroyed one of America's greatest contributions to the world — a truly free press. vQ Law is an instrument for social control.^ Laws affecting the press, then, cannot be studied as phenomena so detached from every day life that a hoop can be passed through them without touching any of society's other activities. What a specific law is, often is not so important as the circumstances which prompt­ ed its enactment or the situation which it is intended to pro­ mote or restrict. Throughout this book, it must be borne in mind that a law is not a commandment from Mt. Sinai, but merely a formalized expression of the people’s needs, wishes, or desires. What society gives, it also can take away from those who persist in using it for purposes other than those for which it was designed. And society always retains the right to modify or alter a law to meet changing situations. While this broader aspect of law is the more important /one, the narrow phase should not be neglected. This narrow phase is the study of specific principles of law as applied to the press, either to permit it to serve its function better or to restrict it in the interests of the superior right of the individual or the group. A newspaperman who doesn’t know these general rules and their practical application hasn’t learned his profession. But the newspaperman who thinks he can be his own law­ yer by merely reading a book is as foolish as the man who buys half a dozen bottles of assorted pills and undertakes to cure himself of any ailment. The sick or injured man, however, can give himself some "first aid” until the doctor arrives. And by a general knowledge

INTRODUCTION

5

of the body and its functions, he can eliminate some visits to a doctor’s office. He knows which of nature’s laws he can violate with a certain degree of immunity as well as those to which he must adhere rigidly. He can grasp such fundamen­ tal principles as the fact that if he uses his teeth to crack nuts, tear string, or test coins for genuineness, he sooner or later will be calling upon his dentist without waiting for that twice a year checkup. If he persists in going out in his shirt sleeves to have a snow­ ball battle with the children or habitually eats pumpkin pie or chocolate cake for breakfast dessert, or at 50 believes he has all the vitality and stamina he had at 18, he should be well in­ formed about the doctor’s visiting hours. By the same token, a newspaperman who persists in print­ ing anything that comes to his knowledge or attention, sooner or later will require the services of a good lawyer. The Bible, conscience, and a sense of ethics may be good guides to human conduct but they are not necessarily sufficient for the operation of a newspaper. A book on newspaper law is not intended as “ten easy les­ sons” on how to become a lawyer. Its use is that merely of a formal guidepost to make the dealer in the printed word aware of his rights, responsibilities, and privileges. And to see all of them in their proper social setting. As far as procedural law (adjective law) goes, Daniel Webster probably would be just as much at home in today’s courtroom as he was when he was making legal history with his arguments before the Supreme Court. But Webster would be consider­ ably confused by some of the present social manifestations of legal science. For law which we are prone to think of as static, is really as dynamic as the conflicting views and philosophies of those who interpret-ifc^ LawT on the other handT~is~ neither magical nor mysterious. It operates in well-defined ways with principles that remain relatively steadfast. It is the aim of this book to develop those principles and to explain them in their proper setting. If it does nothing more than make a newspaperman aware that he has a problem involv­ ing both privilege and responsibilities, it will have served its

6

THE NEWSPAPERMAN AND THE LAW

purpose. A newspaperman never loses if he delays publishing a story until he has time to reflect upon all its implications and possible consequences to the community, or if a specific point of law is involved, until he has had a chance to. consult with his attorney, just as a man never loses if he talks promptly with his physician about a sudden ache or sickness. As the makers of one brand of aspirin say: “If you need quick relief, take two tablets. If your headache persists, see a doctor.” If your knowledge of the general principles of law tell you danger still lurks in that story — see a lawyer. A newspaper­ man’s job is to report court news, not to sit in court as a de­ fendant.

CHAPTER II

T h e N a tu re of Law In the limbo of American wisecracks is one: “There ought to be a law.” Unknowingly, the man in the street in his jest has hit upon the way laws come into being. For, as pointed out in the preface, there is nothing magical in the way a law appears on the statute books. Someone (or a number of individuals) feels a situation needs to, be corrected, limited, or formally defined. Those feelings be­ come articulate and surge upward until in some assembly hall such a bill is dumped into the hopper and begins its way through the legislative process. The chief problem in making a law is not its passage through a legislative body but in first determin­ ing just what form the remedy should take. Long before General Marshall made his modest statement at Harvard, many people in the United States believed this coun­ try should do something to aid Europe to regain its feet. Congress then set about to translate into legislative action this general policy of the man in the street. Unfortunately, the American legal system is made up more of revising and amending than initiating and discarding. In­ itiating means heading off into a different direction which takes time and considerable experimentation. Amending requires only addition to or deletion from basic rules already in existence. The federal income tax laws are examples of this amending pro­ cess which have pyramided until the average citizen needs legal advice simply to fulfill one obligation to his government. Laws affecting the press are in just about as much confu­ sion. Amendments have been made, courts have interpreted and sometimes reversed themselves until both bench and bar and the press realize a general overhauling is a long-delayed need.

8

THE NEWSPAPERMAN AND THE LAW

Radio, in particular, made courts thumb through statute books and precedents and the makeshift answers they arrived at satisfy no one. Now television has added another compli­ cation. Precise definitions of law should be left to the legal fra­ ternity. The journalist will find more understanding in seek­ ing his definitions from the social scientists who give to their terms the broader concept the newspaperman of today needs. / J. O. Hertzler says; ‘‘By law we mean the rules of the game I of organized society.” (1) Those rules, however, must be enforce/ able rules as Kimball Young suggests in saying; “Law is but a form of social control through the systematic application of the power of a political agency in society.” (2) Harry Elmer Barnes emphasizes the changing nature of laws, a factor of which the newspaperman must be cognizant. To him, laws are “the publicly enforceable rules of human conduct and social behavior which prevail in any country at any given ^time.” (3) One principal school of jurisprudence, however, bases its definition of law on practically the same concept as the social scientists. Frank R. Kennedy, professor of law at the State University of Iowa says this school — the historical school — “insists that it is the social pressure behind legal rules that makes law obligatory; that the efficacy of the legal order rests on the sanction of public opinion, which is the source of the social standard of justice.” (4) Speaking for the legal fraternity, Kennedy defines law this wayi / / “If men are to exist together, so that each can develop his I individuality as fully as possible without hindering the efforts | of others, limits of the activities of each individual must be ^recognized. These limits are established by law.” (5) ^Justice Frankfurter of the Supreme Court, in commenting that the American mind too often is preoccupied with the con­ stitutionality of legislation rather than its wisdom, emphasized also the social nature of laws. Cl) This footnote and all further footnotes in this book may be found bv chanter title in the footnote section at the rear of the book. y cnapter title in

THE NATURE OF LAW

9

“Reliance for the most precious interests of civilization, therefore must be found outside of their vindication by courts of law. Only a persistent positive translation of the faith of a free society into the conviction and habits and action of a community is the ultimate reliance against unabated tempta­ tions to fetter the human spirit.” (6) Both bar and laymen are in agreement, then, that the crux of la w i s that iF is a rule that can and will be enforced. Resi­ dents and businessmen of a city may customarily decorate their houses and stores with bunting to welcome a convention. If one refuses to go along on the decoration plan, the courts will not compel him. Neither will the courts interfere if a merchant refuses to abide by the agreement of a businessmen’s association to close all stores at the same time daily. The courts, too, will not interfere if a church congregation finds itself divided on the method by which a particular ritual should be performed. Thus the elements of law which concern a newspaperman, are: laws are social rules, they are enforceable, they change, they may be repealed, and their only purpose is to permit the life of the group to have coherence, stability, and regularity. Laws that no longer command the sanction of public opinion or are outmoded by changing conditions either are repealed or remain on the statute books as legal relics. Prohibition was re­ pealed* when Americans showed they didn’t want it enforced. Every state code is cluttered with legal relics or silly laws such as the attempt of one midwestern state to cope with the auto­ mobile when it first appeared. That law, still buried in the books, reads: “When two automobiles approach a railroad cross­ ing, both must stop, and neither must proceed until the other has passed.” ^^Massachusetts still has a law that permits a husband to whip his wife when she needs it provided he uses a stick no thicker than the width of his thumb. Presumably the husband is the sole judge of when his wife needs to be punished. A husband, how­ ever, who insisted upon exercising his legal right today would find himself before a jury on a charge of assault and battery. It’s not because knighthood again is in flower but because the status of women has changed. Most rights of husbands are like those of pedestrians. The law says the husband is the head of

10

THE NEW SPAPERMAN A N D THE LAW

the house and that the pedestrian has the right of way. fairly safe until they try to exercise those rights.

Both

7

Laws are both attributive and distributive. If they restrict one individual they at the same time confer a right upon an­ other. The laws of libel, for example, restrict a newspaper from printing any bit of gossip or rumor that comes to its attention. Many a newspaperman has come across what in his language is a “hot story” but he knows he can't touch it.

But the laws of libel which restrict the newspaper at the same time confer some rights on the individual. They give the individual the privilege of living the “good, clean life” in anony­ mity, no matter how dull. He forfeits that right when he bangs his automobile into another car, goes into court to adjudicate a dispute with a rival, runs off with his neighbor's wife, gets hit by a taxicab, is married or divorced, eats more oysters than any­ body in the county, expresses himself too loudly in a taproom and is shushed with a right to the jaw, throws his hat into the political ring, makes a speech, writes a book, or otherwise brings himself to the attention of the public. Society then feels it must be informed about him or at least give recognition to him, no matter if his participation in the public view is voluntary or has been forced upon him. The Oregon woman school teacher, who was known prin­ cipally to her landlady and her pupils, soon found newspapers exercised their right to comment and print pictures when she got up at a Parent-Teachers’ meeting and performed a hula hula dance. She discovered the public suddenly had developed an esthetic sense and she had no legal ground for complaint against the press when the rhythmic movement of her hips swung her right out of her job. If the journalist will keep in mind this dual function of the law — to restrict and at the same time to confer —he w ill not only understand but also will not be so bitter at the laws of libel which at times prevent his publishing an item that he knows would obtain high readership interest. Then he will re­ gard law as a kind of Jimminy Cricket to prevent his printing a story which his news judgment tells him is “terrific” but which his ethical sense tells him he should not use.

THE NATURE OF LAW

The journalist must keep in mind one thing more. Too many publishers cling to the theory that a newspaper is an institution with special rights and privileges that are inviolable. To them, a newspaper is not established but ordained. The newspaper must first of all be a good citizen. As a busi­ ness, it must subject itself to all the laws, rules, and regula­ tions that apply to other commercial organizations. The news­ paper is distinct only by virtue of having its principal commodity —news —enjoy a peculiar status in society. No other enterprise can turn out its products with such protection. The law, for example, will not tell an automobile manufacturer what de­ signs, colors, etc. he may use, but it does insist that his product meet certain safety requirements. A cereal maker cannot stuff his boxes half with sawdust although the public might find the new product has more tang and believe it’s twice as nourishing. The newspaper, howeverr must not use jits special privilege to become^the community bully. The Supreme~~~0mtrt in deciding-labOfTDoard cases, made short shrift of publishers’ conten­ tions that a newspaper in the general conduct of its business enjoys rights and immunities not accorded to other commercial organizations. (7) Although the general public is prone to regard layr magi­ cal— and beyondrTts^pQwer^Qfl comprehension, most newspaperjnen view i t as. mysterious and confusing. In thetJm ted“States, much of that confusion arises because there are so many dif­ ferent legal jurisdictions. A state is limited only by the federal constitution, and the courts are most liberal in permitting states to use their police powers to regulate the lives, health, com­ fort, and convenience of their citizens. A roving newspaperman when he adds up his expense ac­ count i n N e w York, whether from timidity or honesty, knows that two and two are four. If his next assignment takes him to San Francisco, the two plus two on his “swindle sheet” again add to four if mathematics is still his sole guide. jLaw is not that exact. A decision of a New York court may be me reverse of tf e upinion of a California court in cases which seem identical. That there is room for even the most learned judges to disagree in their interpretations is seen frequently in

12

THE NEWSPAPERMAN A N D THE LAW

the five to four decisions of the United States Supreme Court. And sometimes such as in the Associated Press anti-trust case, the justices produced five different opinions. (8) The same act may be defined differently by the several states. In an easlei 11 slalt: a pi ess^photographer went to the home o£~a girl who suddenly figured in the news. No one was at home but the back door was ajar. He pushed his way in and found a framed picture of the girl on a dining room shelf. The enraged family demanded action. The district attorney, thumbing through the statutes, decided the most serious case that could be brought against the photographer was a charge of trespassing, a mis­ demeanor. The prosecutor, however, may have wanted the paper for a friend more than the family, and he may have searched the books without his spectacles. In another state, a press photographer under almost the same circumstances, was arrested on a charge of breaking and enter­ ing although the “breaking” consisted of just standing by while an obliging neighbor woman used the key which the family had entrusted to her. Fortunately, the mere issuance of the war­ rant pacified the family, and the prosecutor, of the same politi­ cal faith as the paper, was happy to dismiss the charge on grounds of “insufficient evidence.” A New Yorker got a quick lesson on changing laws. In 1932 he walked down the street with a bottle~iii~his~liaiid~~and a $10 gold piece in his pocket. A judge commended him for his American virtue of thrift but gave him 30 days for violating the prohibition law. A few years later the same gentleman repeated his perform­ ance. This time the judge dismissed the bottle as a mere sign that the man was a gentleman of good spirits but was forced to jail him for failure to turn in his gold money as the government required. Laws, or perhaps more properly^ decisions, affecting thejpress ^may^Eumge--as--xapidly. In 1945, Russia was our ally~and her victories- e n_ the eastern front were helping to bring the war to a successful close. Less than three years later, a N ew York court ruled that to call an American a Communist, if he actually were not a member of the Communist party, was libelous. Sev­ eral papers paid dearly for so labeling three college professors.

THE NATURE OF LAW

13

Yet for almost two years after this decision, an avowed Com­ munist occupied a seat on the New York City council and the party appeared legally on the official ballot of several states. During the war, it was libelous to call an American a Nazi or a Fascist, but today that man probably would have to prove special damages in order to collect. This may be just one more bit of evidence that judges also read newspapers. Fnrthf^rrpnr^th^ interpretations may be only sectional. To call a man aTratTilTmost conmiumliesTnight lead to fisticuffs or a damage suit. But to shout “Rat” at a youth swinging along the streets of Lexington, Ya., might bring only a friendly greet­ ing if he is a student at Virginia Military Institute. An Arizona Gourt ruled that the word “racket” is not necessarily damag­ ing. (9) Even newspapermen fondly refer to their profession as a “racket.” Alqre^ confusion^cpmes with^the^ “mumbo jumbo” language of the law! It a writis served on the^ordirrary layman-hg~Tloesn t kno\\MfTie“ts being cited for meritorious service or being charged with a crime until a lawyer tells him. Lawyers themselves are recognizing that they have lost touch with the people, and a committee of the American Bar Association is at work to make their language understandable. The committee already had recommended cutting down on the “to wits,” “aforesaids,” and the “did and” caused to be “dones.” A lawyer in a Boston court trying a $100,000 damage suit asked a doctor a question that took the attorney 20 minutes to state. When he finished, the doctor answered “yes.” (10) Sometimes this seeming “mumbo jumbo” is necessary. A ^ public official once was “empowered, authorized, and directed’ to do something. Each word was important. Empowering him made him the official responsible for the act, authorizing him gave him the sanction to do it, and directing was a command that he do it. Libel suits have hung on such words as these. A Texas paper lost because it printed a defendant’s confession. The state Supreme Court ruled that the law “authorizing” pro­ secutors to take a confession was simply a notice to them that they could do so if they wished but were not compelled to do it. Therefore, the court ruled, the confession had no standing in law since it was purely a discretionary proceeding.

THE NEW SPAPERMAN A N D THE LAW

/

/ t / While the late William Howard Taft, President of the United /States and later Chief Justice of the United States, was pro­ fessor of law at Yale, a student disputed sharply the instructors interpretation of a particular case.

The usually genial Taft, becoming provoked at the students persistence, blurted: “That’s the law. If you don’t like it, I suggest you get on the Supreme Court and change it.” In 1949, that student had the last laugh because he became Justice Sherman Minton of the United States Supreme Court. Taft was not speaking too idly because another Chief Justice, Charles Evans Hughes, is credited with the remark: “The law is— anything the Supreme Court-^ays it is.” To those steeped in the school book tradition that the Con­ gress (and the several legislatures) makes the laws, the' Chief Justice’s reputed assertion may sound like usurpation of pow­ ers by one branch of our check and balance government. Hughes, however, certainly didn’t mean laws are the product of judicial whimsy or even indigestion. He may have been illustrating the fact that it’s the interpretation of a law that gives it direction and force. And those interpretations are influenced by the changing sentiments of the times. Congress discovered that when it attempted to regulate child labor. First, it tackled the problem through one of its most important powers — the regulation of interstate commerce. The Supreme Court declared the law was unconstitutional. Next Congress tried its second important power — its taxing authority. Again, the Supreme Court said “no.” Then Congress decided a constitutional amendment was the remedy, but its pro­ posal was not ratified by a sufficient number of states. Finally, Congress returned to its original idea of getting at the problem through its regulation of interstate commerce. This time the law won approval of the court. Although all these actions came within a relatively few years, there had been dras­ tic changes meanwhile in the makeup of the court, in economic conditions, and in the sentiments of the people regarding child labor.

THE NATURE OF LAW

15

Hughes, if he made that statement, may have had something else in mind. He might have meant that there is no certainty what a law really does mean until the courts have interpreted it. Judges never go out looking for business but act only when a case comes before them. Once they decide there is no guar­ antee that at some later date they won’t reverse themselves. The federal income tax law is another example of not know­ ing what the law is until the courts speak. For years, it was assumed that federal salaries were not subject to the income tax law. The same cynic who probably asks “Why?” when told “the show must go on,” decided to find out about the tax law. As a result, today even the President of the United States finds his pay check bears tax wounds. Businessmen, always quick to assert their rights, sometimes are caught asleep. A large eastern state back in 1904 placed a $500 a year tax on all store keepers handling oleomargarine. For 43 years, merchants, big and little, paid the tax promptly. In 1947, a small store keeper decided he needed the $500 more than the state did, and he refused to pay. When the case got to the state Supreme Court, the learned justices ruled the tax violated the state constitution. Of course, under the theory of supreme sovereignty of the state, the mer­ chants got no refunds for back taxes paid, but they could look forward to a future of the “more abundant life.” By this time you probably have decided that law is so mud­ dled and confused that a study of it is unprofitable. A girl who was a graduate of a school of journalism where law of the press is not a required subject, held that view. She went from school to a position of responsibility on a daily paper and within a month had her employers involved in three libel suits. They found it profitable to dispense with her otherwise brilliant service. A number of factors prevent law from being as fixed and cer­ tain as mathematics. For one thing, there are those 48 states and the federal jurisdiction which were mentioned. Another factor is that one great base of our legal system — the common'' law —is a product of development and adaptation rather than of specific creation. An English justice 100 years ago remarked he wished it were possible to start over again and make all laws from rational enactment.

16

THE NEWSPAPERMAN A N D THE LAW

A further reason is that cases which seem similar may vary greatly because each one involves not only a set of facts but also the manner in which those facts are presented to the jurors and accepted by them. Some great lawyers of the past (and probably of the present, too) were skilled more in forensics than in law. They made a set of bare facts come to life for the jury. If legal situations at times seem confused, take courage. The late Justice Rutledge, in commenting that reporters often report legal news badly simply because they do not understand it, sympathized with them by saying: “With too rare exceptions their capacity for misunderstand­ ing the significance of legal events and procedures, not to speak of opinions, is great. But this is neither remarkable nor pecu­ liar to newsmen. For the law, as lawyers best know, is full of perplexities.” (11) Law may not be an exact science but it certainly is not made up of mere whimsies and vagaries. There are well-established guiding principles that hold relatively firm. As the Washington bureaucrat said during the war: “It’s true that there is confusion here. But it’s organized.” For Further Reading The story of the “evolution” of law from folkways to formalized legal sys­ tems is told in many general books on sociology, especially those dealing with social institutions. The two listed below were not selected because they are necessarily out­ standing in their field but because they present two of the conflicting views of social science. Barnes, Harry Elmer, Social In s titu tio n s , New York: Prentice-Hall, Inc., 1942. t Professor Barnes believes the legal system is the most important factor in to­ day s society. He takes a rather dismal view of the control law exercises today. Young, Kimball, S o ciology, New York: The American Book Company, 1942. Professor Young discusses law as one of the means of social control but not necessarily the most important nor the most effective. Some of the points of conflict between law and journalism are discussed in: Siebert, Fred S., The Law and Journalism,” 32 V irg in ia L a w R e v ie w , June, 1946.

CHAPTER III

T y p e s of Laws A ffecting th e P re ss Law, as the advertisements of a well-known business firm say, also comes in “a dozen assorted colors and sizes.” Two men marooned on a South Sea island have little use for a set of law books or codes, for a few simple rules serve* their needs. Enforcement depends upon the “sportsmanship” of the pair or the superior physical strength of one. * Primitive groups had no lawyers and judges as separate functionaries, because the men in council and the chief handed down, made, altered, and enforced the rules. As society grew complex, the legal system had to keep up with new conditions although the law seldom moves as rapidly as social changes. ^ Today law and lawyers are necessary. One social scientist even takes an extreme view by calling them the most important directive element in modem civilization. “We hear much talk about ‘our scientific age/ our indus­ trial society/ ‘our mechanical civilization/ and ‘our empire of machines/ Nevertheless, ours is still a lawyer-made civiliza­ tion, and one made by jurisprudence which reached its pre­ sent character in 1825, before most of our great scientific and mechanical advances had taken place.” (1) Some idea of how the law shifted to meet new conditions or as society itself assumed more group responsibility is seen in today’s laws on hnrbly flsqgmlt and murder. Once such acts were “private affairs.” Money payments to the injured or to the sur­ vivors were the only punishments. Further action was taken only if the accused refused to pay. In that event, group action was similar to today’s contempt of court. Medieval laws com­ piled a “price list” for such wrongs, and since the physically handicapped in those days were virtually thrown on humanity’s scrap heap, it cost more to injure a man permanently than to kill him. 17

18

THE NEWSPAPERMAN AND THE LAW

The most brilliant lawyer today is not the one who can re­ cite from memory the statutes and decisions. Just as self-service markets discourage any attempt on the part of checkers to mem­ orize prices which may change overnight, legal training empha­ sizes not rote recall but the ability to look up the law and apply it. Here, too, the lawyer is limited, and those who command the highest fees are specialists in particular fields just as doc­ tors specialize. The corporation attorney who commands a $100,000 fee may not serve you as well on a traffic violation charge as the lawyer struggling to make office rent. Few lawyers, for example, have made themselves specialists ■ on libel, invasion of privacy, and the other laws that restrict edi­ torial content. For one thing, there are not the same demands or rewards for their services in these fields as in other prac­ tices. Another reason, no matter how society regards it, news­ papers, being staffed by human beings, generally relegate to future editorial oblivion the lawyer who wins a case against them. An editor, with human emotions, feels no more kindly to­ ward such lawyer than any individual does toward the person who injures him, no matter where the fault lies. For it is ex­ pensive even for a paper to win a libel suit. In this respect, the newspaperman is no better and no worse than men in other professions and business, few of whom fol­ low the Biblical injunction to turn the other cheek to their enemy. Laws are like the Biblical sands of the sea, and sion of Congress and state legislatures deposits more the legal shores. The First Congress beginning in sidered 268 bills and resolutions and enacted 118 of law. The 78th Congress, starting in 1943, considered and resolutions and approved 1,157 of them. (2)

every ses­ residue on 1789 con­ them into. 7,845 bills

From the first Congress until the close of the 78th Congress, representatives and senators dumped into the legislative hop­ pers 762,702 bills and resolutions. (3) That staggering total does not include the rulings of com­ missions and independent agencies which to particular in­ dustries and businesses have all the effect of law. Sometimes

TYPES OF LAW AFFECTING THE PRESS

19

regulations gush forth from administrative agencies in book form, 100,000 words or more at a time. The newspaperman should at least have a general awareness of the fields of law that affect him if he does not care to strike up a more usable acquaintanceship. In the classification of fields of law, there are just about as many ideas as there are in journalism on what makes a good headline. The following list is meant to be neither definitive nor precise, but is intended only to serve as workable infor­ mation. The principal basic types or fields of law the neywjpaper as a unit encounters include: COMMON Colonists, exercising their rights as Englishmen, borrowed as much of the common law as they wished. After the Revolu­ tion, it was necessary to retain some legal base for no people can start all over again. American common law continued to follow that of England, but the American concept of a free press is different as the next chapter shows. Common law has been defined variously as unwritten law, the residue of customs and sanctions which served society from the day when men first lived together, and judge-made law. Each element has some truth and also some falsity. Common law is a blend of abstractions, expediency, and articulated customs. It is unwritten in the sense that a good part of it has never been put into statute form. It is the result of custom because its antecedents go back into early rules of the group. It’s judge-made law because it was given substance and direction by the early English royal courts, and today judi­ cial precedents loom large in the determination of many cases. To win their suits, lawyers look up records of cases in the past in which the issues involved were similar to those of the pre­ sent dispute. Some of the cases they cite may go back hun­ dreds of years. They hope the same line of legal reasoning will prevail again. Following precedents gives a measure of stability to the law, but judges do not follow them blindly.

20

THE NEWSPAPERMAN AND THE LAW

A few years ago in an eastern state, a farmer closed off a road which ran through his property. Neighbors w ent to court. The county surveyor testified that the road actually was on die property of the farmer. The yidge, however, dipped back into common law as far as the common pasturage customs of medieval England, and decided since the farmer for years had not ob­ jected to use of the road, it now became a public highway. Newspapermen frequently cover cases involving a popular conception of the “unwritten la w /’ Husbands (or wives) who shoot the rival who broke up their marriage go back to the com­ mon law to plead justification on the ground they were defend­ ing the sanctity of the home. D espite the statutes governing murder, juries often accept such pleas. Common law played a major role in the growth of freedom of the press in England, and as w e shall see in a later chapter, some authorities persist in the view that Americans borrowed that concept. In written communication, American writers are protected under a common law copyright. The courts recognize an un­ published manuscript as the property of the creator unless he forfeits his rights by giving it to the world w ithout protecting him self under statutory copyright. Americans, however, have enacted most of the legal rights of the press into more concrete law. MORAL LAW Moral law, growing out of religious concepts, finds no dis] tinct place in our modem legal system. It is important how| ever to the press because it exerts a negative control to a degree j not often suspected. The newspaperman pays respect to the "moral law ” when he withholds a story because his own code of ethics tells him it violates "good taste.” Rightly, or wrongly, he feels his read­ ers w ill be disturbed at a particular story or more often at the phrasing of an individual sentence or two. Only in recent years, j for example, have such words as "rape,” "syphilis "hell” and I even the milder "liar” shown up in newspapers. For years, no one ever died of cancer in a newspaper, and maily w ent back to

TYPES OF LAW AFFECTING THE PRESS

21

that old. custom of refusing for a long time to tell the reader the disease which was sapping the strength of Babe Ruth. Doc- at tors often went to jail for “unethical practices” but only recently \ for performing abortions. 1 Once it was almost standard practice for newspapers to print no pictures of bodies, especially those mangled in accidents. Many newspapers have abandoned this self-imposed rule on the ground that horror is part of life, and in the case of auto­ mobile accidents, may even have a salutary effect. The New York D a ily N e w s in 1928 regarded as a “scoop” j its photograph of Ruth Snyder as she sat in Sing Sing’s death chair, but many other papers criticized its publication. An elec- \ trqcution picture published in 1949 by a Chicago paper drew j about the same reaction. (4) A city editor on an eastern paper insists that his reporters write suicides as merely “sudden deaths” on the theory that the family wants to file that obituary clipping in its Bible or mem­ ory book. In the handling of other news, this city editor likes to regard himself as a “hard-boiled newspaper man of the old school.”

J

Many papers formerly invoked this “good taste” principle on certain labor news on the ground “agitators” should not be en­ couraged with publicity. When former Senator Burton K. W heel­ er campaigned for vice president on the Progressive ticket in 1924, a Pennsylvania newspaper gave him a three-column “spread” when he talked in that city. Just before the United States entered World War II, Senator Wheeler returned to that city. This time the paper ignored his speech by reasoning it j* violated “good taste” to print views contrary to those held by j the “best people” in the community. Moral law is not a law in the legal meaning because it is not enforceable by the state. But its restraining force in shaping the appearance of the printed word in the newspaper ana in deciding what is “fit to print,” cannot be underestimated or dismissed without comment. American readers, for example, were aware of the Wally Simpson story before the rank and file of Englishmen knew a crisis was approaching because most English papers, by tacit agreement, refuse to put their sovereigns in a “gold fish bowl.”

jj i i ; j j

22

THE NEW SPAPERMAN A N D THE LAW

American journalism faced just as delicate a situation in re­ porting the activities of President Franklin D. R oosevelt. Even during the heat of political campaigns no attention was called to his infirmity nor any pictures printed that revealed the heavy apparatus that permitted him to walk nor the special ramps built for his convenience. Paul W. W hite, former news editor of the Columbia Broad­ casting System, discloses that a radio announcer who in 1936 watched Mr. Roosevelt fall in the mud of Franklin Field, Phila­ delphia, as the president entered to deliver his address, kept up a running talk of description of the crowd and the weather but made no mention of the mishap. (5) All of radio’s “good taste” cannot be attributed to fear of the wrath of the Federal Com­ munications Commission when license renewal time comes around. If an editor decides that “good taste” forbids his publication of a story or picture, or compels him to alter a story to spare his readers, who can deny his decision is just as effective for the c o n u n u n i t y as if there were legal censorship? CONSTITUTIONAL LAW constitution is a statement of the basic principles, organ­ ization, and powers which a people have granted to their gov­ ernment. All rights not granted by the constitution are retained by the people to insure themselves of being ruled by a govern­ ment of law and not of men. And the people reserve the right to alter that constitution as they deem necessary. The constitution is the newspaperman’s fountainhead of free­ dom. The people of the United States were distrustful that a government could be relied upon to permit them to continue the enjoyment of freedom of speech, press, and worship. They sought to make certain by expressly stating in the constitution that there must be no tampering with these basic rights. Today, many critics of the press find fuel in the theory that this free­ dom is not an absolute right. Future battles over the press no doubt w ill be fought out along this line, and newspapers should be aware of the implications in it. Each state, too, adopted a constitution, and it took a war to determine finally that the federal constitution was supreme.

TYPES OF LAW AFFECTING THE PRESS

23

Americans put their constitution in writing; some other coun­ tries have not set down in print their basic tenets of govern­ ment. To an Englishman, however, his largely unwritten con­ stitution is just as real as the American document that can be read, seen, and touched. The constitution has made the American government one of jj delegated and implied powers. The founding fathers might be compared roughly with directors of a modem corporation. They set up the general policies and leave to the officers the day-today rules necessary to carry on the business. STATUTORY LAW As Charles A. Beard suggests, the delegates to the Phila­ delphia convention knew that the general language of the con­ stitution they were framing could become concrete only with statutes. (6) Washington expressed the same thought in saying: “Estab­ lishment of certain general doctrines of law does not make a government.” (7) The Constitution itself provided for those “day-to-day” oper­ ations by de c la r in g : ______ ___ ____________________________ "his constitution and all laws of the United States made in pursuance thereof, and all treaties made and which shall be made under the authority of the United States, shall constitute supreme law of the land” (8) ________ ^ __ Statutory law simply means laws en a cted b y a law-making body such as Congress or state legislatures. For practical news­ paper purposes, enactments or ordinances by minor political divisions such as cities may be considered in the same category. A number of cities at the moment are taking advantage of their taxing power to levy a tax for permission to conduct busi­ ness. Courts have interfered only when this special tax applied just to newspapers or attempted to classify newspapers by a yardstick of circulation. (9) Distribution of printed matter, other than general newspa­ pers, has also encountered municipal regulation and some of those ordinances have been annulled by the courts. (10)

24

THE NEW SPAPERMAN AND THE LAW

Since statutes (or ordinances) are creations of law-making bodies as they attempt to discharge their duties, no statute can be superior to the constitution. If a law conflicts w ith the limi­ tations imposed upon Congress (or the legislatures or city coun­ cils) by the constitution, the courts declare the law void. Such decisions, unfortunately, may leave the injured party without redress for injury, and without means to retrieve an unlawful tax paid. Newspapers generally have shown reluctance to force a test case on such laws, and act only when they believe the law has become “oppressive.” | j I \

Statutes deal with every phase of modern life. A popular conception is that statutes deal only with offenses called crimes, but hundreds of them, collectively called private law, regulate commerce, industry and all enterprises or activities upon which people embark. CRIMINAL LAW ^ A . crime is an offense against society. The law assumes a particular act is injurious to the best interests of the group as a whole. The state then steps in and prosecutes the ofiWirl^r Unlike some private law (also called civil law) criminal law has well-defined punishments. The paper which libels a per­ son doesn’t know until the jury speaks if the wrong w ill cost it six cents or $100,000. The offender against criminal statutes knows in advance the limits of his punishment. The murderer is aware that if convicted the minimum sentence w ill b e the penalty fixed for voluntary manslaughter and the maximum w ill be death.

On the editorial side, the newspaper is concerned with several types of criminal law. If the story it prints incites, or tends f to incite, people to commit a breach of the peace, the state may j prosecute for criminal libel. j

A brutal murder once prompted a midwestern newspaper, after the suspect was caught, to comment editorially: ‘"There is talk among some red-blooded men that the county may be spared the expense of a trial.” A mob bent on lynching gathered around the jail, but finally was dispersed. The district attorney w ent through the formal-

TYPES O F LAW AFFECTING THE PRESS

25

ities of drawing up a charge of criminal libel but abandoned the attempt. Contempt also is dealt with by the courts as an offense with | the penalty a fine or imprisonment or both. Publication of lot- i tery news, obscene and blasphemous stories also can be handled I under the penal code. On the business side, the printing of advertisements known to be fraudulent may be dealt with by penal statutes as w ell as civil actions. Several executives of a magazine once went to jail for padding their circulation figures in an attempt to de­ fraud advertisers. Any criminal statute affecting other businesses also applies J to the newspapers. A newspaper publisher once was fined $10 f and costs for permitting the editorial room to be cluttered with discarded back copies and waste paper which the city contended created a fire hazard. Had the publisher read his paper that morning he may have noticed that according to the news column the city was conducting a “vigorous campaign” against fire law violations. j CIVIL LAW Some authorities prefer the term “private law” to “civil law.” They have a good point because it covers suits between individuals. The state tajkes no part except to set up the rules and provide the court machinery. The editorial side is concerned chiefly with civil law in )i libel, invasion of privacy, and unfair competition. All three in jj law are torts. A tort for practical purposes may be defined J as a personal injury suffered through a wrongful act. “Personal” does not refer to physical injury but, as in the case of libel, to loss of reputation or good name or “mental anguish.” Only a person himself can destroy his good name with impunity. The peril to a newspaper in libel, we have seen, is the j unfixed limits of the damages which may be assessed against j it. Courts do not interfere with a jury's award unless con­ vinced the sum is all out of proportion to any injury, real or apparent. The governor of a southern state in 1948 won a libel suit of $375,000 against a magazine, but the court cut the

26

THE NEWSPAPERMAN A N D THE LAW

sum in half on the ground it was excessive. A typographical error cost a Texas paper only $100, but a Pennsylvania paper paid $15,000 for a printer’s mistake. A newspaper or a press association which finds a rival (or radio) stealing its news has an action in civil court. The edi­ torial side also encounters civil law if it wants to sue for in­ fringement o f a copyrighted article or to protect its trademark from being appropriated by another paper. Invasion of privacy is a relatively uncharted field. Courts disagree not only in its interpretation and application but also in whether there is such a wrong. Pictures and advertisements have provided most of the few cases. The crux is: W hat use can be made of the photograph of a person not directly in the news if the paper for some reason wishes to publish the picture? In advertising, some states have statutes and in other states courts have applied the rule that a person’s picture, testi­ monial, etc. cannot be used in an advertisement without his permission. On the business side, the newspaper encounters civil law when it signs a contract to sell or buy goods or services, in­ sures its building or em ployees, or performs any of the acts.a corporation must do to carry on its affairs. Civil and criminal law sometimes are confused because the same set of circumstances may give rise to both kinds of cases. After an automobile accident, one or both motorists may be charged with drunken driving. That’s a crime. The state takes over and prosecutes so that the man may be punished. Both cars may be badly damaged, but society w ill not concern itself because that is a matter betw een the two motorists. If the driver at fault refuses to pay for the damage to the other car, that motorist brings a civil action. The state takes no part in that case except to provide the courts and the procedure for hearing it. EQUITY It may be just a reflection of today’s mores, but ordinarily, time or money, or both, are thought to heal everything. In the lush 1920’s, many chorus girls, broken-hearted on Page 1 with pictures, because some “sugar daddy” reneged on a pro-

TYPES OF LAW AFFECTING THE PRESS

27

posal usually made after he had looked upon the wine while it was red, found the wounds healed miraculously when the foreman of the jury, almost like a radio quiz master, boomed: “Give the little lady $50,000.” It would have been repugnant to society if the courts through their equity powers had compelled “daddy” to make good on his promise, and besides the little lady then probably would have had a real heart attack. The courts, however, recognize that in less tender affairs, money cannot always be the answer. Early England recognized the inadequacy of the law in certain situations by permitting some pleas to go directly to the king. The busy sovereign simply delegated a chancellor as the “royal conscience.” Sometimes the complainer does not want damages, but in- r stead wants the defendant to do a particular thing or to re­ frain from doing an act. He prays to the court for relief either j in the form of specific performance or an injunction. Thej branch of law which decides his plea is equity. Popularly, the best-known equity cases are divorce suits. One (or both parties) wants release from a “contract.” Perhaps no group in modem American life felt this power of the courts more than labor unions. On the plea that his property or business was in danger of irreparable damage, an employer went into court to ask that a striking union be com­ pelled to desist from barring entrances to his plants, wholesale picketing, interfering with men who remained at work, or to oust workers on a “sit down.” If the court accepted the plea, it granted an injunction, violation of which was punishable as contempt of court. A baseball player who jumps his contract also may be en­ joined from playing with any other team. The courts, wise in the ways of the world, would not tell the player he had to pick up his glove and resume work, because he might just stand like a statue at his position. They simply tell him that until he fulfills his contract he can’t play with any other team. An active partner in a publishing firm who refuses to give | his colleagues an accounting of his stewardship may be com- (' pelled by an equity court to provide those records.

28

THE NEWSPAPERMAN AND THE LAW

i,. Editorially, the newspaper is not so much concerned with I equity because the injunctive powers of the courts cannot be used to prevent publication of an article. R elief to an injured (^person comes after publication only. ; A Washington judge in 1949 did enjoin a newspaper from printing a series of stories criticizing the Federal Housing Authority, but the injuction was dissolved before it could be tested. (11) Judges also have acted to ban the circulation of comic books, but again, there have been no rulings by appellate courts. Minnesota once enacted a law that had the effect of prior censorship. The law forbade the publication of papers (or per­ iodicals) of “undesirable character.” One paper, devoted prin­ cipally to attacks upon public officials, was enjoined from fur­ ther publication until the owner gave promises of “good be­ havior.” He appealed, and the United States Supreme Court in 1931 held the Minnesota statute was unconstitutional. (12) When the government proceeded against the Associated Press, it sought a remedy through equity. The government wanted to prevent the press association from enforcing certain of its by-laws which the justice department said “restrained trade.” (13) An equity court once refused to enjoin a Texas newspaper from using the same name as a paper in St. Louis. The court, in effect, ruled the St. Louis paper had not proved any actual injury. (14) ik At times, newspapers, press associations, and magazines have II resorted to equity in disputes over the rights to features, to 11 protect news dispatches from being used without permission or '^payment, and to prevent interference by administrative agencies. ADMINISTRATIVE

LAW

A phenomenon of m odem American government is the growth of administrative law. ^The Interstate Commerce Com­ mission, created by Congress m 1887, is considered to be the

»F LAW AFFECTING THE PRESS

29

parent of commissions and independent agencies that are still Congress (and the legislatures) can delegate some of its powers to commissions for regulating particular industries or activities. Constitutionally, a commission, as an agent of Congress, can have no power that Congress does not enjoy. A commis£ exercises legislative, judicial, and executive functions. The reg« lations it makes have all the effect of law. Its interpretation of the way an industry meets those requirements usually is not reviewed by the courts unless there is a clear question of arbitrary use. It can call upon the full powers of the government to enforce its edicts if necessary. The commission best known to journalism is the Federal Communications Commission which has jurisdiction over leased wires and radio message transmission as w ell as radio broad­ casting. The- newspaper itself is more concerned with the Postoffice Department since a loss of its second-class mailing privileges may be a financial death sentence. The Supreme Court in 1945 effectively limited the Post Office Department’s right to pass on contents of a periodical. (15) At present, the postoffice and newspapers are disputing over the Department’s fluctuating interpretation of what violates the lottery laws, and this issue, too, some day may head into the courts. The business side of the newspaper is concerned with ad-1 ministrative law through regulation of advertising by the Fed-' eral Trade Commission and the Securities and Exchange Com-1 mission as w ell as the agencies or commissions handling the common industrial problems of social security, workmen’s com-, pensation, unemployment insurance, and others. The continued growth of administrative law promises future I; conflicts. In the' opinion of many authorities, administrative agencies and commissions are developing into a fourth branch of American government.

THE NEWSPAPERMAN A N D THE LAW

For Further Reading The story of the development of customs and rules into a system of con­ stitutional government is a fascinating one. For the story of the English constitution see: Hallam, Henry, C o n stitu tio n a l H is to r y o f th e E n g lis h C o n s titu tio n , New York; E. P. Dutton & Co., 1912. May, Sir Thomas Ersldne, C o n stitu tio n a l H is to r y o f E n g la n d , London; Armstrong & Co., 1895. For the American constitution: Curtis, G. T., H isto ry o f th e U n ite d S ta te s C o n s titu tio n , New York; Harper & Bros., 1897. Hamilton, Alexander; Madison, James; and Jay, John, T h e F e d e ra list, New York; Henry Holt & Co., 1898. Warren, Charles, T h e M a k in g o f th e C o n s titu tio n , Boston; Little Brown & Co., 1928. For a blending of both American and English stories with special reference to freedom of the press, see: Patterson, Giles, J., F re e S p e e c h a n d a F re e Press, B o sto n ; Little Brown & Co., 1939. Chafee, Zechariah, F r e e d o m o f th e Press, Chicago; University of Chicago Press, 1947. For general information on the American legal s y s te m see: Bush, Chilton R., N e w s p a p e r R e p o r tin g o f P u b lic A ffa ir s , New York; AppletonCentury Co., 1940. MacDougall, Curtis D., C o v e rin g th e C o u rts, New York; Prentice-Hall, Inc., 1946.

CHAPTER IV

" W h a t Is F reed o m of th e P ress?" When the historian of a far distant age sets down the record of our times, he undoubtedly w ill list as two of America’s major contributions to the world —objective reporting and a distinc­ tive concept of freedom of the press. The story of objective reporting belongs properly to the journalism historian. The story of America’s unique concept of a free press belongs here, but a subject that volumes have not exhausted hardly can be made definitive in one chapter. (1) The purpose here, however, is to see just what freedom of the press means to the newspaper of today. Only by a knowledge of his­ torical perspective can present-day laws of the press be under­ stood. Some of the questions to be explored are: 1. Is it really a distinctive concept, or is it, as some authori­ ties say, a mere borrowing from England? 2. If it is a distinctive concept, how did it originate? 3. Is freedom of the press an absolute right? 4. What are the signs that indicate the trend toward the future? The newspaperman by the very nature of his work cannot live apart from the world. Quick to note man’s progress in other fields, he often fails to observe the currents that swirl about his own feet. As freedom of the press is the backbone of his pro­ fession, the newspaperman is foolish to dismiss these currents with blissful assurance that his liberty always w ill remain as firm as that foundation of solid rock upon which Biblical man was directed to erect his house. To assume, as some do, that America merely borrowed its concept from England is to ignore, as one Supreme Court justice 31

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has said, all the lessons of history. (2) Those lessons may serve w ell as guideposts in resolving the growing criticism in some quarters that there must be changes in the modern press, by law, if necessary. There is no denying that early America borrowed on the prin­ ciples of freedom of the press (and speech) that still were evolv­ ing in England after several centuries of struggle. W hen the barons forced the M a g n a C jia r ta from King John at Runnymede, the liberties they won were pretty dubious. The sovereign promised that: “To no one w ill w e deny right or justice.” /

The royal idea of right and justice, however, did not extend jto the individual the privilege to speak his opinion freely. It jtook centuries more for those rights to be won. There is evidence that the colonists used England more as a negative example to demonstrate what they did not want. Realizing full w ell the restrictions their brothers in England still were fighting, the colonists were determined to settle the issue almost at one blow. More convincing evidence is that fact that half a century after freedom of the press was written into the American Con­ stitution, England still struggled with newspaper taxes that were ill-disguised attempts to shackle criticism of public officials. In April, 1949, the editor of the L o n d o n D a ily M irr o r went to jail for three months and his paper was fined $40,000 for a journalism escapade that America probably would have dis­ missed as being in about the same category as the “invasion from \ Mars.” The M irro r in a page 2 feature, claim ed a vampire man had killed a number of persons, presumably to drink the blood. The feature clearly was based on the murder of an elderly woman which had brought sensational stories in other London papers, even the most conservative press. (3) Several had alluded to rumors of a vampire angle. London papers, just alloted more news print, had been engaging in a circulation war.. The M irro r, in its feature story, reported a vampire man had arrested in connection with the murder. The M ir r o r and its editor were penalized on the ground the story made it difficult

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for the defendant to receive a fair trial. Buried in the legal phrasing of the judgment, however, was the impression that the court also was prompted by the desire to teach the newspaper “good manners.” For the justice said: “In the opinion of the court, this (the publication of the article) has been done, not as an error in judg­ ment, but as a matter of policy, pandering to sensationalism for the purpose of increasing the circulation of the paper.” (4) The court, in branding the article a “disgrace to journalism,” went back to 1742 for its major precedent. American judges, in dealing with constructive contempt, seem more prone to con- ^ sider cases in the light of modern developments in mass com­ munications. No American newspaper, not even those most blatant in “trying cases in print” ever has felt such judicial wrath. In the United States, the most usual result is to grant a change of venue for the defendant. This evidence is cited, not as justification for a free rein of pre-trial comment, but simply as another in­ dication of the difference between the English and American judicial mind in one phase of newspaper activity. Although there is always danger in attempting to draw paral­ lels in law, American newspapers have gone further and edi­ torially have tried to “quicken the conscience of the court” while the judges were making up their minds on sentences or motions for new trials. In some of the most striking examples of this type of editorial “command” to the judiciary, the Supreme Court has upheld “freedom of the press” with an admonition to judges not to be so sensitive to “the winds of public opinion.” (5) In civil libel, the L o n d o n D a ily M irro r on Nov. 20, 1949, reported a case which does offer some parallel with the Ameri­ can view of what constitutes damages. A former British heavy­ weight boxer in attempting a “come back,” was matched in what promoters described as his “first full-out test” since he lost the title. One newspaper, T h e P e o p le , described the match as the “craziest, quaintest, promotion of the year,” and added: “The suckers, of course, rolled up to see it. The promoters cleaned up.”

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The promoter was awarded $10,000 in a libel action. (6) A few years ago, an eastern metropolitan newspaper, in comment­ ing upon a sports event arranged as a charity benefit, not only criticized the spectacle sharply but also inferred none too subtly that the promoters had been so liberal in listing expenses that charity would continue to “suffereth long and endureth much/' The promoters failed to collect in a libel action. In contempt cases, it doesn't seem logical that American courts have refrained from taking drastic action either from lack of zeal toward protecting defendants or from failure to realize their inherent powers. In civil libel, the courts also know of the rules on fair comment. A more logical explanation seems to be that American courts are aware that w e have a different concept of press freedom than that of England. This w ill be borne out by a more deJ tailed study, in a later chapter, of constructive contem pt—those acts committed outside the immediate jurisdiction of the court. In 1918, with Supreme Court blessing, judges began to stray far from direct contempt —acts committed w ithin the court’s im­ mediate jurisdiction —but in the past few years, the highest court has brought them back to the more narrow interpreta­ tion. In cases from Texas and two from California, the Supreme Court within the past few years, has insisted that judges be "men of fortitude, able to thrive in a hardy clim ate.” (7) One of the tightest fetters the years was the crime of took the form of penalizing the Lord Campbell’s Act was plead a defense of truth.

on the English press down through seditious libel which most times criticism. Yet not until 1843 by the English journalist permitted to

Today English papers may print only the fact that divorces have been granted. American judges often impound divorce evidence but the public by that time usually knows the charges, the property settlement, the child custody arrangements, and are busy speculating on a new spouse for each party. In November, 1949, a British cabinet minister thought it necessary again to remind the House of Commons that mem­ bers w ill not be permitted to ask questions about stories in the press or to call for a committee of inquiry into a newspaper

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report. His reason was that no minister had official responsi­ bility for the press. If the American concept of the press coin­ cides with that of Britain, why must a British minister remind the Commons about a subject which no American Speaker ever finds necessary to mention? More evidence that America views the press in a different light than does England, or most of the continent, is seen in the operation of press associations. More than a hundred years ago, Paul Julius Reuter became, in effect, a British minister without portfolio by setting up a news service. The effective tie-in between Reuters and the British gov­ ernment grew in importance as England became master of most of the world-wide cables. From Downing Street, the official interpretation of the British government regarding questions that affected the empire went out to the world in Reuters' dis­ patches. News from outlying empire possessions or other world points, came back by the same process. To some authorities, this was cooperation between a news service and a government; to others it was a form of prior restraint or “censorship.” The practical mind doesn't need to be told that no Reuters' reporter was going to stray far from “official interpretation.” For a long time, one American press association received most of its world news through an exchange arrangement with Reuters. Later, France, Italy, Germany, and Japan had their “official news agencies,” and today Russia still permits only “official versions” to go out. It was not until the 1940's that Reuters went under “private ownership” of British newspapers. For one thing, radio transmission was dooming any attempt to control news through ownership of cables. In all American history, the government has had no such connection with a press service. The world always has received its news of the United States from private American sources ^ or news services or from correspondents maintained here by papers of other countries. The close connection in the latter part of the 18th century and early 19th century between one or more American papers and the administration produced “official interpretations” in those few papers, but the remainder of the press and news services

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jwent their independent ways. The whole history^ o£ American journalism is a story of practices which belie any tie-in between government and press on either domestic or foreign news. The American concept has never conceived of any affinity between the two. The American State Department, especially in the immediate years before World War II, frequently was called upon by for­ eign legations to explain a press story. The American secre­ tary each time patiently had to tell the inquirer that the govern­ ment exercises^ no control over the press and has no way-ef-mak^. ing it conform even to the Department’s own policy. In 1927, the State Department tried to exert some influence by asking the press to print a report that the Department was concerned over a growing foreign hegem ony in Mexico. The Department was eager for the story to reach the American reader without its source being traced to officialdom. The press responded by roundly denouncing the subterfuge. Historically, the events leading to the adoption of the First Amendment guaranteeing freedom of press, speech, religion and the right of petitioning and peaceable assembly, are replete with evidence that the founding fathers deliberately set about to cor­ rect what they regarded as the evils of the English system. Col­ onists were neither unaware nor disdainful of the part English­ men had played and were playing in the battle for free expres­ sion. At times, there was cooperation betw een groups abroad and in the colonies. Colonists themselves had been waging such a struggle. America’s first newspaper was suppressed. Massachusetts’ gov­ ernor and council were outraged not only by some of the con­ tents of Benjamin Harris’ “P u b lic k O c c u r r e n c e s B o th F o r e ig n and D o m e s tic ” but also because he printed without a royal license. Royal governors, in their credentials from the crown, were warned that liberty of printing might give rise to "great inconvenience” and that nothing should be printed "without your especial leave and license first obtained.” (8) When Andrew Hamilton by his forceful argument that the jury should pass on the fact as w ell as the law, won a verdict of "not guilty” for John Peter Zenger, publisher of the N e w Y ork

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W e e k ly J o u rn a l, against a charge of seditious libel, the verdict was applauded in England. One. correspondent of the P e n n sy lv a n ia G a z e tte , writing from England, observed: “The greatest Men at the Bar have openly declared that the Subject of Libels was never so well treated in Westminster Hall as at New York.” He quoted a "Goliath in learning and politics,” as saying of Hamilton’s argument: "If it is not law it is better than law, it ought to be law, and w ill always be law wherever justice pre­ vails.” (9) The colonists set out to make into law not only Hamilton’s contention that juries should pass upon both fact and law but also that truth should be admitted as a defense. Under the English law of the time, neither of Hamilton’s contentions was valid, but the trial was a landmark because it gave evidence that the colonists were going to develop an institution that soon would beat off the challenges of government. The progress of that development can be measured to some extent by the action of the First Continental Congress in 1774. * Freedom of press was one of the five inviolable rights the Con- / gress inserted in its Declaration of Rights. (10) Soon afterward, the colonies began drawing up written constitutions which con­ tained freedom of press provisions. One argument of those who maintain the American concept of freedom of the press was borrowed from England is that the completed draft of the Constitution made no mention of it. Since the delegates again followed the custom of meeting secretly and only later published their journal, the best record of the dis­ cussions is in the notes of James Madison. Freedom of the press, it is true, did not receive much attention but a clue as to the reason is given in the comment of Delegate Richard Sherman of Connecticut. Quoting Sherman’s reason why a proposal to appoint a com­ mittee to draft a bill of rights was voted down, Bancroft has him saying: “The State declaration of rights are not repealed by this Constitution and, being in force, are sufficient.” (11)

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* After the Constitution was com pleted, the figh t began for a specific Bill of Bights. The First Congress directed that such a bill should be drawn up and left the work to a committee headed by James Madison. The struggle sometimes is referred to historically as being betw een the schools of Hamilton and Jefferson although Jefferson was in France at the time. Such designation doesn’t mean that Hamilton and Jefferson alone bore the brunt but is a simple way of designating tw o principal ideas. As a result, Hamilton often is regarded as opposed to a free press but a/reading of his defense of Harry Croswell in 1804 shows his ^opposition was to the m ethod and not to the goal. (12) A generalized statement o f opinion is that he believed freedom of the press, and similar ideas, depended in the final analysis on the sentiment of the people and npt_on written guarantees. A rough parallel m ight be the case of money which has no value in itself but receives value from confidence in the government and the economic system as a whole. A statement of principle, then, has only the effect w hich public opinion or sanction gives it. The Jefferson school, on the other hand, wanted an expressed declaration of restrictive clauses. Jefferson had such faith in free institutions that he once wrote: the basis of our government being the opinions of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a govern­ ment without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter.” (13) Writing about nine years later to criticize the Sedition Act passed by Congress in 1798, Madison was emphatic in claiming a distinction betw een the American and British government. He wrote that the First Amendment must be considered in the light of that difference. (14) Concretely, the evidence that Americans were fully aware they were blazing a new trail toward individual freedom, may be summed up under these general classifications: 1. America, despite some debunkers, was settled primarily by people fleeing from what they regarded as shackles on their liberty. It is incongruous to believe that such people would

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impose upon themselves the same shackles that drove them from England. 2. As Americans applied common law, seditious libel, long a press control in England, was unknown. The political party that attempted to impose it —the Federalists —not only was swept from power at the next election but the party disappeared. The Federalists’ motive was punishment and revenge for criti­ cism, the use to which England put seditious libel. 3. The American Bill of Rights is a creation of the people themselves and expressed in a constitution. Tt fa notT as in England, r r p a H n n n £ _ a _ -g Q y p im in g b o d y . The English Bill of Rights was directed at the crown and was not intended to apply to Parliament which gave it. 4. The American Bill of Rights recognized the difference between America and England by also forbidding a state re­ ligion. There was an established church in England. 5. The American government was a novel political creation. The people were not wresting power from the crown but were setting up a government based only on powers they granted to it. It was to be government by consent of the governed. It was unlikely in such circumstances the people were going to sign away rights to a creature of their own making which at some future time might be turned against them. 6. After the constitution was completed, there came insist­ ent demands from state after state that guarantees of individual liberties be expressly set forth and that implied guarantees were not sufficient. It is inconceivable that such demands would have arisen had the people deliberately set out to copy English insti­ tutions or if they elected to put their trust in English common law. 7. When the American Bill of Rights was adopted, the press situation in England was roughly this: The press was free from license and censorship. But sedi­ tious libel was still a matter for the courts to determine because not until the Fox Libel Law of 1792 did juries pass on the fact and the law. Even that law did not stop such prosecutions, and not until 1843 was truth a defense.

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There was a tax on the English press which exercised, strong control. 8. The use of the word “abridge” in the First Amendment indicates the Constitution meant no prohibitions. It could have used “censor,” “regulate” or some other word capable of being interpreted as conferring only a qualified right. //y 9. Years later, the American people reinforced that Bill of /B igh ts in the Fourteenth Amendment which prevents states from / infringing upon the rights or immunities of any citizen. True, j it was not aimed specifically at the rights in the First Amendj ment but judicial interpretation has given it that effect. \ \ \

The Supreme Court has said: . . by the First Amendment it was meant to preclude the national government, and by the Fourteenth Amendment to preclude the states from adopting any form of previous restraint upon printed publications.” (15) The w eight of evidence, then, is that the American Bill of Rights is a recognition of the differences in the ideologies of the English and the American people. Those differences, as they affect the press, have become more pronounced over the years both by custom and by judicial interpretation. But let’s submit the case to a panel of experts: James Madison, who sat in on the constitutional convention, often stressed this difference. In his argument for the Bill of Rights, he wrote that the First Amendment should be considered in the light of the essential difference betw een the British gov­ ernment and the American Constitution. And he added: “Freedom of the press and the rights of conscience, those choicest privileges of the people, are unguarded in the Brit­ ish constitution.” (16) Again, he wrote: . . the freedom exercised by the press and protected by public opinion far exceeds the limits pre­ scribed by the ordinary rules of law.” (17) By “ordinary rules of law,” Madison clearly had in mind common law. T. M. Cooley, the great authority on constitutional law, wrote: “The English common law which made libels on the Con­ stitution or the government indictable, as it was administered

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by the courts, seems to us unsuited to the condition and cir­ cumstances of the people of the United States, and therefore never to have been adopted in the several states.” (18) Further on he says: “The common-law offense of libelling a government is ignored in constitutional systems, as incon­ sistent with the genius of free institutions/’ (19) Schofield goes even further in saying: “One of the objects of the Revolution was to get rid of the English common law on Liberty of speech and press.” (20) The courts have spoken frequently on the subject. In Grosjean v. American Press Co., the majority opinion declared: “. . . the restricted rules of English common law in respect to freedom of the press in force when the constitution was adopted were never accepted by the American colonies.” (21) Another decision was even more emphatic: “No purpose in ratifying the Bill of Rights was clearer than that of securing for the people of the United States much greater freedom of religion, expression, assembly, and petition than the people of Great Britain ever enjoyed. Ratified as it was while the memory of many oppressive English restric­ tions on the enumerated liberties were still fresh, the First Amendment cannot reasonably be taken as approving prevalent English practices. On the contrary, the only conclusion sup­ ported by history is that the unqualified prohibitions laid down by the framers were intended to give to liberty of the press, as to other liberties, the broadest scope that could be coun­ tenanced in an orderly society.” (22) In rejecting the argument of the government in the Abrams case, brought under the Amendment to the Espionage Act of 1917, Justice Holmes said: “I wholly disagree with the argument of the government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion.” (23) Again, Justice Holmes has said: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas

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—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be car­ ried out. That, at any rate, is the theory of our constitu­ tion.” (24) Is the Freedom of the Press an Absolute Right? Are the rights and privileges which the American people have given to the press unqualified and absolute? D o those rights and privileges set the newspaper apart from all other commercial and industrial institutions? Publishers who adhered to the theory they were living in a cloister untouched by law or public opinion, received probably their greatest shock during the depression days of the 1930*8. First, the publishers were embroiled with the National Recovery Act which encouraged industries to set up self-regulating codes and to fly the “Blue Eagle/* The second shock came in the dealings of the press with the National Labor Relations Act. Colonel Robert R. McCormick, publisher of the C h ic a g o Tri­ b u n e , possibly represented the extreme view in his embracing theory that the First Amendment would be violated by any law that had the effect of unreasonably raising the cost of produc­ tion “or unreasonably decreasing by indirect means the return from publishing, as these would destroy- its freedom as effec­ tively as would excess taxation.” (25) He included in these factors all regulations affecting labor conditions, and preservation of business com petition, and regu­ lations superintending “accuracy in advertising.” (26) The Supreme Court spoke in a number of cases but nowhere made its message more clear than in a suit growing out of the discharge of Morris W atson of the Associated Press for Guild activities. The court said: “The publisher of a newspaper has no special immunity from the application of general laws. He has no special privi­ lege to invade the rights and liberties of others. He must answer for libel. He may be punished for contempt of court. He is subject to antitrust laws. Like others he must pay equitable and non-discriminatory taxes on his business.” (27)

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The newspaper, then, is a business institution and so re­ garded by the law. On the editorial side the story is different. Publishing a newspaper is a business but the content of the paper cannot be regulated by ordinary business laws or rules. As Justice Sutherland said: "A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves/7 (28) But as the Supreme Court has indicated, an orderly so­ ciety must have some limit on the free play of opinions. (29) The newspaperman must never forget that liberty of the press is not his exclusive right but that it belongs to all people just as the other freedoms of the First Amendment. That an orderly society must impose some limits, actual or implied, on all liberties is obvious if any liberty is to be worthwhile. Ab­ solute and total liberty results only in irresponsibility. Jus­ tice Holmes made that clear when he said that freedom of speech certainly gives no man the right to cry Tire” in a crowded theater. (30) The First Amendment guards freedom of religion but Con­ gress interfered with that liberty by outlawing the polygamous practices of one religious group. (31) The Supreme Court up­ held the government’s contention that polygamy is a crime against the orderliness of society. On the other hand, if any restriction is to be imposed be­ cause of some doubtful and remote danger, the effect is to de­ stroy all liberty. In some Latin American countries, the presi­ dent is empowered to suspend all constitutional guarantees whenever a crisis arises or is threatened. Liberty there, then, fluctuates at the will of an executive or legislature. Down through American history from the birth of the Con­ stitution, there have been a number of times when the First Amendment was threatened. The Alien and Sedition Acts, which have been mentioned, were aimed directly at critics of the government. The Federalists were following an historic pattern, for the pages of the past are filled with examples of how men or governments in control used that power to per­ petuate themselves.

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Authorities are pretty w ell in agreement that the acts were unconstitutional. W hat would have happened had any test cases reached the Supreme Court is conjecturable, because the court in those days had not established the doctrine of judicial nulli­ fication of an act of the legislature. Instead the people spoke by repudiating at the polls the party which placed the acts on the statute books, and the laws them selves expired. Even Jefferson, probably the most ardent champion of a free press, later believed it necessary to restrict some of that free­ dom. He thought, however, that it was a matter for the states and not for federal action. Stung by the vituperative attacks on his administration in Federalist organs, Jefferson in 1803 wrote to Governor McKean of Pennsylvania: “The Federalists, having failed in destroying the freedom of the press by their gag-laws (Alien and Sedition Acts), seem to have attacked it in the opposite form, that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit . . . The press ought to be restored to its creditability if possible. The restraints provided by the laws of the states are sufficient for this if applied. I have therefore long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in re­ storing the integrity of the presses. Not a general prosecu­ tion, for that would look like persecution, but a selected one.” (32) The pre-Civil War agitation in the several states for a time threatened to strain the First Amendment, and the courts may have had that situation in mind when later they interpreted the Fourteenth Amendment as forbidding states to interfere w ith the liberties granted by the federal constitution. During the Civil War years, the government acted princi­ pally through the military. Papers were suppressed or suspend­ ed, but the crisis passed without the First Amendment being placed on trial. World War I and the immediate post-war years led to restrictions from two sources. By the Espionage Act of 1917 and the amendment to it in 1918, certain newspapers, mostly organs of minorities or special groups, were punished for interfering w ith the war effort.

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Free speech of individuals also was restricted. In a series of cases growing out of those acts, the Supreme Court brought forth what has since been referred to as the “clear and present danger” construction. The principle is that a society cannot permit itself to be destroyed from within while it is fighting for its life against external forces. At the same time, the freedom for which that society is fighting is worthless if the people in waging that strug­ gle lose the liberties they already enjoyed. As Justice Holmes said: “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight.” (33) Writing more than a century before, Alexander Hamilton ex­ pressed the broader idea in saying: “The circumstances that endanger the safety of a nation are indefinite; and for that reason no constitutional shackles can wisely be imposed upon that power.” (34) The rule of reason on limitations was expressed by the Su­ preme Court this way: “Any attempt to restrict those liberties (First Amendment) must be justified by clear public interest, threatened not doubt­ fully nor remotely, but by clear and present danger. Only the gravest abuses endangering paramount interests, give occasion for permissible limitations.” (35) The court, however, came to the aid of the states when they had to deal with a wave of syndicalism. The states were per­ mitted by the Supreme Court to avert the danger through their police powers although there was some restriction on the First Amendment’s freedom. The court, in effect, held it not only to be the state’s right but its duty to protect its citizens. That right, however, does not include the power to suppress a newspaper because its contents are objectionable nor to penal­ ize the press through taxes. We have seen that Minnesota was not permitted to enjoin the publication of a paper which state officials held to be scandalous nor was Louisiana able to use its taxing authority as a penal power. (36)

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l And more recently the courts have decided that a press assoI ciation cannot refuse to render service to a newspaper if the \ refusal tends towards monopolistic practices. (37) On the other hand, a newspaper cannot take refuge in the | First Amendment to avoid its liability for injuries it causes. The American Concept and the Foreign Press That the American concept of freedom of the press is dis­ tinctive is reinforced by a brief look at other countries. Be­ fore World War I, a free press could be considered to have ex­ isted in England, Switzerland, Holland, the Scandinavian coun­ tries, and possibly France. But “freedom” was patterned more on the English concept than on the American because libel and sedition took its pattern from the British press laws rather than from the American. And no country now shows signs of swing­ ing more to the American ideas. ^ Many French reporters “worked” for an organ of fact and a journal of opinion at the same time and often used their press connections for obtaining other sources of revenue. Americans rely on press agents to put over special views but special, and even foreign, interests in France bought their own organs of opinion. Russia has a freedom of the press clause in the constitution adopted by the Soviet Republics. Back in 1920 Lenin, how­ ever, gave his views on such freedom in a speech in Moscow. He asked: “Why should freedom of the press and freedom of speech be allowed? Why should a government which is doing what it be­ lieves to be right allow itself to be criticized? It would not allow the opposition lethal weapons. Ideas are much more fatal I things than guns. Why should a man be allowed to buy a printing press and disseminate pernicious opinions calculated to em[ barrass the government?” (38) During World War II, field men of a United States govern­ ment information service were shocked at the reaction of some Latin American papers to the news articles proffered them, telling the story of how the United States was m eeting the war challenge of the Axis. Some of these field men report the first question asked them was:

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“How much will we be paid for printing these stories?" In 1949 alone, three newspapers in Argentina were forced to suspend for criticizing Dictator Peron, and two of the larg­ est papers found themselves defendants in government suits for suggesting Peron had not suffered financially by becoming head of the state. By direct control or by subtle suggestion, newspapers in many parts of the world are feeling the power of the state. And in the areas where freedom does seem to exist, the different con­ cept of the rights and privileges of the press are reflected in varying restrictions upon content. Resume and Analysis: If the winds of the future portend anything, it is likely that the whole subject of freedom of the press in the United States will come in for more and more discussion. In 1942, through a grant of $200,000 by Henry R. Luce of Time, Inc. and $15,000 from the Encyclopedia Britannica, Inc., a commission undertook an inquiry into “the present state and future prospects of the freedom of the press." (39) Later the work was broadened to include other major agencies of mass communications: Radio, motion pictures, magazines, and books. The Commission, reporting its work in several volumes, found freedom of the press in danger for three reasons: 1. “The importance of the press to the people has greatly increased with the development of the press as an instrument of mass communication. At the same time the development of the press as an instrument of mass communication has greatly de­ creased the proportion of people who can express their opinions and ideas through the press. 2. “The few who are able to use the machinery of the press as an instrument of mass communication have not provided a service adequate to the needs of society. 3. ‘Those who direct the machinery of the press have en­ gaged from time to time in practices which the society con­ demns and which, if continued, it will inevitably undertake to regulate or control.” (40)

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But the commission found, no agreement on the methods that control or regulation should take. As J. Edward Gerald suggests: “The dilemma which chills the ardor of those who think the press should be required to change in some way is whether the job should be left to the individual editorial virtue or to the social conscience of the group expressed in mandatory law. In either case, the means appears inadequate for the task. Indi­ vidual control, ideal under the theory of democratic government effected through Benham’s formula of instruction, excitation, and correspondence, tends to bog down in complacency, thus converting a great social instrument into a mere personal pro­ perty. “Government control, which has prevailed for practically all of recorded history, tends to make the press either an inert, colorless government circular or an instrument of propaganda by which the group in power seeks to maintain political con­ trol” (41) If critics ever come to as much agreement upon the method as they do upon the goal, some editorial complacency may be badly jarred. For this reason, the newspaperman should be alert as to the true meaning of freedom of tlm For practical, working purposes, he may regard it as mean­ ing simply no prior restraints either by licensing or censorship. On the other hand, he must not regard it as an absolute and inviolable right, nor worst of all, as his own personal property to do with as he will. It must be a balance between rights and privileges on the one hand, and responsibilities on the other. With that perspective as his guide to bolster America’s unique conception of a free press, the newspaperman of today can repeat in earnest the declaration by Thomas Jefferson of more than 150 years ago: “As long as the press remains free, this nation shall remain free.” For Further Reading The literature on freedom of the press is endless. Chafee and Patterson re­ ferred to at the end of Chapter 3 well repay the reading. The following additional reading is suggested: Mott, Frank, A m eric a n Journalism , New York; Macmillan Co., 1941. Lee, Alfred McClung, T h e D a ily N e w sp a p e r in th e U n ite d S ta te s , New York; Macmillan Co., 1937. A smaller hut good readable account is: Bleyer, Willard G,, M a in C u rre n ts in th e H isto ry o f A m e r ic a n J o u rn a lism , New York; Houghton Mifflin Co., 1927.

WHAT IS FREEDOM OF THE PRESS?

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COURT CASES A good historical account as seen through the eyes of the courts is in: Grosjean v. American Press Co. 297 U.S. 233. The series of cases growing out of the Espionage Act of 1917 and the amendment to it in 1918, shows the thinking of the court. The most important of those cases are: Schenck v. United States 249 U.S. 47. Frowerk v. United States 249 U.S. 204. Debs v. United States 249 U.S. 211. Abrams v. United States 250 U.S. 616 (first case under the amendment). Schafer v. United States 251 U.S. 466. Pierce v. United States 252 U.S. 239. An interpretation of cases after 1931 is found in: Gerald, J. Edward, T h e Press a n d th e C o n stitu tio n , 1931-47.

CHAPTER V

"P ro b lem s o f N ew s a n d N e w sg a th e rin g " The newspaperman going about his daily work soon realizes he is in probably the most unusual business in the world. It is unusual in a number of ways. A manufacturer, either from memory or from records, if his is a large corporation, can describe his products exactly. A newspaperman cannot because no one ever has hit upon a completely satisfactory definition of news. This lack of a concrete definition of news is of more than academic or philosophical interest. Some of the conflicts be­ tween the press on the one hand, and society, either group opinion or law, on the other, have arisen because these two have found no agreement in determining just what is, or is not, ^ news. Some of the most vigorous critics of the press base their principal attack on what they call the failure of newspapers to print “significant” news. So far, these critics have failed to agree among themselves as to what is either “significant” or news. M.

»

Some other critics are still dismayed by the press accounts of the death in 1942 of Movie Actress Carole Lombard and 11 aviators, killed in a plane crash as Miss Lombard was being flown to Hollywood after a war bond appearance in Indiana. Practically every newspaper featured Miss Lombard in the headlines. These critics believed 11 aviators were more “im­ portant” to a country at war. They could not understand that the press made no attempt to evaluate the “importance” of any one on that plane. To millions of Americans, Miss Lombard was not just a detached movie star but a “living personality” as close to them as a neighbor or personal acquaintance although many had never seen her. Certainly, the country appreciated those 11 aviators, but none of them had the warmth and per50

PROBLEMS O F NEW S AND NEWSGATHERING

51

sonal appeal that Miss Lombard had exerted on the average American. Americans regret the passing of many public figures but seldom do they genuinely mourn as they did on the death of Franklin E>. Roosevelt. Courts and administrative agencies, in particular, try to define news by limiting access to or refusing outright to divulge certain information which to the press is “news.” The State Department from time to time has been reluctant to “fill in” a story or report on the aground the “information” is not news but “diplomatic secrets.” When the angels dropped down on the hills around Bethle­ hem, they hastened to reassure the frightened shepherds that their mission was only to bring “glad tidings.” Had there been newspapers in those days, the “tidings” probably would have been buried in the birth announcement columns because often an event is not news until it is interpreted and its significance evaluated days, weeks, or years later. A Paris cobbler who relieved the monotony of his drab existence by keeping a diary, noted in it one July that “the day is quiet.” Little more than a block down the street, the Bastile had been stormed to give us the symbol for a new era of the rights and dignity of man. The Wright brothers discovered their first sustained flight brought only a notice in their home town paper that “two popular bicycle merchants are expected home for Christmas.” Medieval kings greeted visitors with: “What tidings?” which is the equivalent to today’s salutations: “What’s new?” His Majesty, however, wanted more than a casual reply, for the visitor often told the king whether he could continue to relax in the banquet hall, or should buckle on his armor and head out to battle. The courier who raced a frothing horse to report that “William had landed” would have been just as amazed as any chronicler of his day to know that his “news” was so “signifi­ cant” it was to change the destinies of most of the world. Many writers in journalistic history or methods who must attempt to pin down with thumb tacks specific definitions of news realize they are engaging in mental jujitsu with seman­ tics without adding much to working knowledge. Chilton R.

52

THE NEW SPAPERMAN A N D THE LAW

Bush says: "News is not always mere information; it is more frequently information that is interesting, that is to say, infor­ mation that the ordinary human being derives satisfaction or stimulation from reading.” (1) Charles C. Clayton, a practicing newspaperman besides be­ ing a writer on journalism, concludes that “whatever interests people is news.” (2) He admits that interest is a word that is indefinable. The Kansas Editorial Association believes news is: “. . . an impartial report of the activities of men, mind, and matter, which does not offend the sensibilities of the more en­ lightened people.” (3) The words “impartial” and “enlightened” can start more arguments than they settle. Curtis D. MacDougall believes news is: . . an account of an event which a newspaper prints in the belief that by so doing it will pro­ fit.” (4) The word “profit” hardly will go unchallenged in either newspaper or academic circles. W e b s t e r s C o lle g ia te D ic tio n ­ a r y , trying its hand, comes up with: “. . . news is a report of a recent event, information about a thing unknown, recent in­ telligence.” T h e N e w A m e r ic a n C o lle g e D ic tio n a r y , of Harper and Bros., also likes the word “recent” because it defines news as “a report of any recent event, situation, etc.” When King Tut s tomb was uncovered, the excavation was a “recent” event, but the life and times of Tut, including his burial service, was a vital part of the story although it hap­ pened 5,000 years or more ago. Stressing the “unknown” doesn't help too much because one of the top stories every day is about a “situation” which the reader already has observed for him­ self when he stepped out onto the porch to get his morning paper —the weather. J

Wilbur Schramm brings a different concept into the discussion by declaring that “news exists in the minds of men. It is not an event; it is something perceived after the event.” (5) Social scientists, following along this same theory, produce a result not too much unlike the old argument as to whether there is a sound if no one is around when a tree falls in the forest. This theory finds a rough parallel in criminal libel in which the words themselves are regarded only from the stand­ point of the actions, potential or actual, they arouse in the reader.

PROBLEMS OF NEW S A N D NEWSGATHERING

53

Newspapermen themselves are o£ little help in arriving at a definition of news. Many of them like to quote an early leader in American journalism that “when a man bites a dog, it's news/' This definition, however, is more facetious than accurate be­ cause if enough men go around biting dogs, the report of such happenings will soon work its way from Page One, back to the classified advertising section, and finally out of the paper en­ tirely. Unless a man eating fish chokes, he is unlikely to receive public recognition, but the boys at Harvard hit the front pages simply by eating fish in a peculiar way — they swallowed gold­ fish. If newspapermen by chance should find themselves in agree­ ment on what is news, they may be chagrined to discover the reader has another idea. Reader interest surveys have shown that subscribers frequently reject editorial judgment as to what was the top news of the day. Definitions, nebulous at best, change from year to year as shown by the fact that today press associations and larger papers have full-time reporters, and smaller papers part-time reporters, for education, business, fi­ nance, real estate, religion, aviation, movies, health, and other activities for a long time ignored by most of the general press. The president of the United States once was not “news” and as late as the 1920s, a vice-president discovered many people in his home city knew only that he had “some sort of govern­ ment job in Washington.” There is some justification for newspapermen believing that “advertising is anything a person wants in the paper; news is anything that person wants kept out.” A Washington woman, feuding with her neighbor, turned her pet goat loose to eat the dessert the neighbor had set out to cool on her back door­ step. The unusual “revenge” attracted press attention when the woman goat owner was arrested, but she “threatened” news­ papers if they dared to print it. A week before, she cancelled her subscription to one of those papers because it had printed only two paragraphs of the inconsequential talk she had made before a small neighborhood club. The newspaper business is unusual also because its indefin- v able raw material —news —is free to everyone. The manufac­ turer owns exclusively the raw material he takes into his plant

54

THE NEWSPAPERMAN AND THE LAW

and only health and safety regulations prevents his fashioning any products he wishes. The newspaper, however, can claim no monopoly or title to news. Anyone who sees, hears, or be­ comes aware of a happening may publish freely his version and opinions about it.

\

Since the press can claim no exclusive ownership in news, the ordinary rules of property rights cannot apply to the newspaper’s raw material. This, too, at times raises problems. (6) e J The newspaper business is still more unusual because unlike | most industries, it cannot produce for stock. At the end of each day, it throws out its used and unused raw material and starts fresh again the next morning. This puts a premium on speed in gathering the raw material which, in turn, leads to conflicts with society as well as to frequent errors in judgment on the part of the newspaper staff.

i The product it finally fashions is probably the most perishl^able goods in the world. Basically, the wag had a point when he said: “There is never any new news. It’s just the same old thing happening to different people.” Today’s issue upon which the staff labored so hard becomes history tomorrow. The pub­ lic each day greets its news heroes with a shower of confetti made from newspapers that told the story of yesterday’s idol. In the coverage of courts, especially, newspapers at times may transgress in their zeal to print “news” instead of “reviews” and “history.” In other areas, rumors and reports are substii tuted for actual facts which may not be available for another day or two. Sometimes the printing of the rumor makes the disclosure of the actual happening anticlimactic. Both press and reader are impatient. Most of the so-called “trial by news\ / paper” can be blamed on this inability to wait until the story unfolds from the witness stand. Finally, the newspaper business is unusual because society has conferred upon it privileges accorded to no other industry. Most of these privileges come about because society itself recog­ nizes that the democratic form of government cannot operate I unless the citizenry is informed on all matters on which it event| ually must make decisions, or about all events to which it thinks * it should give recognition. By law, custom, and judicial inter-

PROBLEMS OF NEW S AND NEWSGATHERING

55

pretation, the newspaper is recognized as having a special and peculiar function. /

As the newspaperman goes about his routine, doors swing open, records are put at his disposal, public officials and private citizens talk freely and often about matters they would not dis­ cuss with their neighbors, and most of society’s activities are put on parade so that the reporter may observe and record. The . social theory that an individual has the privilege of anonymity ; loses out continually to the principle that society should be infa rm e d or at least be made aware of actions and conditions. I By law, custom, and judicial interpretation also, society in -^ sists that a business so unusual as the newspaper must in turn t assume responsibilities for the privileges granted to it. Society never can give any of its institutions a blanket power to roam and pry at will without any regard for the individual or the group as a whole. The attempt to strike a balance between these privileges and responsibilities produces most of the con­ flicts with which this book deals. It is the purpose of this chap­ ter to look into the general nature of those privileges and re­ sponsibilities and then in later chapters to discuss them more fully.

H

For a society to order that the press shall be free, as the ^ American constitution and the people command, and then deny it access to the news would be inconsistent, j It would be just as inconsistent for a government based on tne worth and dig­ nity of man to say that every person must live in a "goldfish bowl” for the edification of his fellow citizens. Society by cus­ tom and through its coercive power, as expressed in law, must attempt to define these areas so that neither the principle nor the operation of democratic government suffers. Since in the following pages there will be much discussion of rights and privileges, it is well to fix those terms more pre­ cisely. To this point, those terms have been used practically synonymously. In statutory law, however, there is a sharp dis- jj tjnction between alright ahdTa^privilege. Often that distinc- f Son is the key to~a pressTawT III' ||T

—T*-' --II

, , i11■11—■ ■■ ■ / ------ ~~r r •................... A

Political scientists who specialize in the operation of gov­ ernmental systems, give us more understanding than lawyers

56

THE NEW SPAPERM AN A N D THE LAW

on the practical use of the words. Courts, however, make a sharp distinction between legal and political language. The constitution contains both legal and political terms. When a statute comes before a court for interpretation, the judges go over it and try to give to each word a legal meaning. If a par­ ticular word does not lend itself to a legal meaning, the courts ^ regard it as political. Only legal words are enforceable. Political scientists define rights and privileges in terms of statutory interpretation. It is helpful, however, if we use their definitions as a kind of “guide” and keep in mind that the pur­ pose is to make a workable distinction rather than to be legally precise. (7) For purposes of statutory interpretation, a political scientist would define a right as a benefit conferred upon the public y jgenerally. ^

I A privilege is a benefit conferred upon certain persons or | classes less than the whole public. i A power is a privilege to be used for the benefit of others, j The “power of the press” is a popular term without standing in law. It simply means the newspaper, directly or indirectly, has brought pressure to bear upon a particular situation or problem. If the pressure is exerted by persons or groups outside the “news­ paper family,” the newspaper still feels it invoked the power of the press by calling attention to the conditions that needed remedying. Subjects of the law are the sum total of people affected favorably or unfavorably, including those charged with enforc­ ing the law. An official charged with the duty of enforcing a press law is just as much a subject of it as the newspaper against which it is enforced. Although these definitions are not legally precise for the purposes to which we will use them, they do provide a basis for determining workable distinctions that must be kept in mind, x s Rights of the press are a misnomer, for the whole public shares!I them, too. Freedom of the press therefore becomes, under this I distinction, a right, not a privilege, because it is conferred upon l everybody. Anyone with a hand press and a few sticks of type can publish a “paper” if he so chooses, and his right to do so is

PROBLEMS O F NEW S AND NEWSGATHERING

57

just as valid as that of the N e w Y o rk T im e s . Unless he runs afoul of criminal statutes and civil liability (which apply also to the metropolitan press) the man with die hand machine is given just as substantial protection under the First Amend­ ment as the publisher down the street with his multiple unit presses. Early English and colonial struggles for free expression were waged over the “printing press” and not over newspapers, for newspapers did not appear until more than a century after print­ ing was introduced into the western world. Early state con­ stitutions reflected this trend by inserting provisions for “free­ dom of the printing press.” The invention of printing from moveable type meant that ideas could spread rapidly, and the church, and later the state, took immediate steps to control it. The church feared the spread of heresy which was defined as any idea or opinion con­ trary to church canons. The state feared its authority would be undermined by criticism, and ideas and opinions were “quar­ antined” and permitted to circulate only after they had been “disinfected” by the censor. Although the press likes to speak of its privileges, actually it has few of them. What the press regards as privilege often is only “courtesy.” Members of Congress during debates and proceedings have absolute privilege ! They are accountable to ncTcouff or other agency for any statement made in the pursuance of their official duties. A member of Congress cannot be sued for libel for any statement he makes during debate, no matter how false or how damaging it may be to an individual or group. Each house, however, can discipline its own members if it chooses. During the Hoover administration, a ranking member of the Republican party was stripped of his committee positions and patronage for declaring that the president had “sold out” to Europe by agreeing to a moratorium on debts owed to the United States by its World War I allies. This punishment was purely a party matter, and the congressman did not have to answer to anyone else for his charges.

58

THE NEWSPAPERMAN A N D THE LAW

£ A congressman, however, on a campaign swing has no privif lege but only the right of free speech. He can be sued for libel just as any private citizen. t Lawyers and judges also have this absolute privilege in order | that all the evidence may be produced and weighed. It would handicap the operation of the whole legal proceedings if judges and lawyers were held accountable for their courtroom re­ marks as long as those statements are germane to the case. A witness, however, has no such privilege because if it can be proved he lied, he may be charged with perjury. Newspapers are permitted to defend libelous statements if they can show the stories were a fair and true report of legis­ lative or judicial proceedings. If a congressman makes a libel­ ous charge during debate, the press can print it without danger provided jit dpes^not _go beyond the statement and add matter or coinment of its own. Since this privilege does not originate with the newspaper but is dependent upon another party — the legislator or the judge — it is called conditional privilege, or more popularly, qualified privilege. Members of state legislatures also have absolute privilege. Whether city councilmen, county commissioners, and minor leg­ islative bodies enjoy absolute privilege has not been established definitely in all cases, but a reasonable assumption is that a county commissioner or city councilman is permitted wide lati­ tude if his statement bears directly upon the business at ljand and is made without hate or spite. Newspapers have courtesies of many kinds that set them apart from individuals or other businesses, but which are “privi­ leges” only in a popular sense rather than in legal standing. Theoretically, the Congress should be meeting in closed ses­ sions, as early Congresses did, but reporters not only are ad­ mitted, but special galleries are provided for their comfort and convenience. The press has direct wires into the house and senate press galleries and convenient telephones. Individuals ’ sitting in the regular spectator galleries are not permitted to ; make notes, but a reporter from his seat looking down on the ; presiding officer can write as much and as long as he wishes.

PROBLEMS OF NEW S AND NEWSGATHERING

59

In most courtrooms. special tables are set aside for the con­ venience of the press. Ordinarily, any person may drop into a courtroom and scramble for a seat, but only reporters accredited by the judge can sit at the press table. The press table is usually opposite the jury box and right beneath the bench so that re­ porters can see and hear advantageously. If a judge decides the testimony by its nature should not be heard by the general public, especially youths, he may clear the room. Sometimes he may “invite” the press to leave also, but if he does it con­ sistently society may take a hand to make certain the defen­ dant is receiving justice and not persecution. The respect and close understanding between many judges and the press was illustrated in the perjury trial of Alger Hiss, one­ time State Department official whom die government charged permitted secret documents to fall into the hands of Communist agents. After the jury had returned a verdict of guilty, Fed­ eral Judge Henry W. Goddard warned the 12 men and women jurors not to discuss their deliberations after they returned home. And his warning, he said, applied to any discussion with those “very likeable newspapermen who will approach you as you leave.” (8) The jurors scampered down the courthouse steps and scattered, while the correspondents watched ruefully some “good stories” vanish around the corner. Sometimes a right and privilege blend. Records kept by many officials are public records and anyone may examine them. But if people trooped into some offices just to scan records out of idle curiosity, or merely to kill time while waiting for a rain to cease, public business would be inconvenienced. In some instances, therefore, examination is restricted but in those cases the courts usually hold that a newspaper has a peculiar interest in the records because its function is to inform the pub­ lic about them7~ Such interest permits reporters to scan the records while individuals may be denied access to them A public official wiio retuses to permit a reporter to see a public record usually can be compelled^ by court order to open his books! In attempting to make a definitive list of the rights, privi­ leges, and restrictions of the press, difficulties are encountered.

THE NEW SPAPERMAN A N D THE LA W

60

Some rights and privileges shade into each other and are still further confused because “courtesies” also play a part. Again, some restrictions apply generally and others only under specific conditions. The following list is intended to be neither precise nor definitive, but is simply a classification of convenience in order that they may be studied more fully in later chapters. RIGHTS Freedom:

To print without prior licensing or censorship*

To determine for itself what it will print and what it will not* j T o gather the news. \T o examine public records. Clo scan the police blotters in some states. / To make fair comment and criticism of movies, plays, books, or other public performances. j j ^ T o cover public meetings, often with special courtesies to permit it to operate better than the ordinary spectator there. To take pictures of persons or events in the news if it does not have to break a law to snap those photographs. CL^To comment on and to criticize public officials and their official actions. To protect its work and skill by a quasi-property right in the news after it is gathered. To refuse any advertisement it does not wish to publish. PRIVILEGES To defend certain libelous statements with the defense of qualified privilege. To receive a special mailing rate from the Post Office De­ partment. Protection in some states against being given false infor­ mation.

PROBLEMS OF NEW S A N D NEWSGATHERING

61

To keep secret in 12 states the sources of any information. RESTRICTIONS i The press is accountable under libel laws for everything it prints. I May not in some states print the names of juveniles involved in crimes. > Cannot print obscene words or statements. Can use copyrighted material only under certain circum­ stances. i Must respect the privacy of the individual who is not in the news. Cannot comment too freely upon a court case or criticize the conduct of it while it is still underway. - Cannot print anything that tends to incite, or actually does incite, a breach of the peace. Cannot print anything, in time of war, that interferes with the war effort such as calling upon men to ignore the draft or printing information that may give “aid and comfort to the enemy.” How far the Alien Registration Act of 1940 may affect news of this type in peace time is not yet determined. t- Cannot print pictures of money, stamps, government bonds, etc. if such reproductions could be passed off as genuine or if such reproduction would aid in counterfeiting. Cannot print advertisements which it may have reason to believe are fraudulent. Cannot print advertisements as news stories without danger of losing its second-class mailing privileges. Cannot print lottery news. Of all .rights, none is so important to the press as the guar­ antees of "the First Amendment And of restrictions, none is so severe as libeC For that reason, libel is always a substan­ tial section of any book on law of the press.

62

THE NEW SPAPERMAN AND THE LAW

For Further Reading Ernst, Morris, T h e F irst F re e d o m , New York; The Macmillan Co., 1946. Chafee, Zechariah, Jr., G o v e r n m e n t a n d M a ss C o m m u n ic a tio n s , Vol. 1, Chicago; University of Chicago Press, 1947. Chafee, Zechariah, Jr., F re e S p e e c h in th e U n ite d S ta tes, Cambridge; The Har­ vard University Press, 1942, Field, Marshall, F re e d o m Is M o re T h a n a 'W ord, Chicago; University of Chicago Press, 1945. Villard, Oswald Garrison, T h e D isappearing, D a ily, New York; Alfred Knopf Co.. 1944. Siebert, Fred S., T h e R ig h ts a n d P rivileg es o f th e P ress, New York; AppletonCentury, 1934.

SECTION II "R ights a n d P riv ileg es of th e P ress"

CHAPTER VI "R ep o rtin g th e F ed era l G o v ern m en t" The most frequent and probably the most important date­ line in today’s newspaper is Washington. Founders of the nation generally believed the federal gov­ ernment would operate principally in the field of external af­ fairs, leaving states to handle most of the domestic matters except interstate commerce, defense, currency, and other prob­ lems calling for uniform and united action. Many of them believed the state legislatures should take the place of parlia­ ment in regulating most of the activities of citizens. (1) ^ The swing toward Washington as a news center, in evidence for years, was hastened by World War I, accelerated greatly by the depression of the 1930 s and gained new momentum from the crisis that led to World War II. Despite those who decry centralization, Washington will continue to be the most im­ portant news source for Americans, and for the world, down into the unforseeable future. A natural outcome of the tremendous growth of the federal government is that the executive branch and the independent agencies have eclipsed Congress in the year-round headlines. With 42 billion dollar budgets, Congress no longer can make appropriations in detail as it once did, right down to the amount of ink a department might use. The President draws up the | budget, and the executive branch also has cut into another | congressional function by initiating more than half of the I 'legislation. , Congress has not abdicated its powers but simply has come to recognize the inevitable. It now legislates, appropriates, and supervises in terms of general policies, and leaves to the executive department the carrying out of the broad program. The government is too big for Congress to continue to argue 65

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THE NEW SPAPERMAN A N D THE LAW

for three weeks over such things as a two-cent tariff margin on a specific commodity. But Congress, in and out of session, continues to be a prime news source. Qlt dictates all revenue and expenditures, controls all executive structure but the elective offices of president and vice-president, has an almost absolute power over personnel, can create or abolish, departments, commissions, agencies and offices, and has general supervisory authority over the opera­ tion of the government. And when these vast powers are exer­ cised by 531 members of Congress, bound by no authority ex­ cept rather nebulous party responsibility, there will always be much material for correspondents to fashion into news stories. \ Today’s coverage of Congress by press associations and in­ dividual papers and even magazines and radio stations, has pro­ duced situations that show some new interpretations of the rights and privileges of the press. More than 600 men and women are accredited to the Capitol press and radio corps to report the activities of Congress. The First Congress under the constitution met behind closed doors as was the custom in those days of all such legislative bodies. When the first reporter wandered into a Congressional sitting, he remained there by tacit permission. And that is the situation today, although Congress has been liberal in pro­ viding quarters and other aids for correspondents in their daily work. (2) Reporters now pick up copies of bills and calendars as fast as they come from the government printing office for use of members of Congress, call members from the floor for inter­ views or to answer queries, ride in elevators marked “for mem­ bers and press only,” attend all but a few committee hearings, and, in general, act as if they had a legal right to be there. ~r- The theory of deliberative bodies is that they have an in­ herent privilege of meeting secretly and of publishing only their official actions. When the government moved from Philadel­ phia to Washington, four newspapers — two Republican and two Federalist — quickly began publishing in the new capital. When Congress convened in Washington for the first time, Samuel Harrison Smith, who with the help of Thomas Jefferson

REPORTING THE FEDERAL GOVERNMENT

67

had published the N a tio n a l I n te llig e n c e r , memorialized the House for permission to sit within the bar and take shorthand notes. The House, evenly divided between Federalists and Republi­ cans, stalemated the petition with a tie vote, and Speaker Thomas Sedgwick settled the issue by deciding against Smith. Smith, denied a place inside the railing, took notes from the gallery but within a month was expelled. Speaker Sedg­ wick claimed Smith's stories contained many false statements. Smith retaliated by charging the Speaker was angry at Smith's “fair statements of the Speaker's blunders." When the Republicans took control of the House at the next session, the Speaker was directed to provide places on the floor for reporters and stenographers. Smith obtained a seat beside the Speaker. Along in the second Congress the Senate also permitted reporters, and the press began its systematic coverage of Con­ gress. From time to time, however, both houses have served notice that they retain their inherent privileges by expelling reporters who angered them. A few were expelled for becom­ ing too active in legislation. In modem times, no reporter has been expelled by formal Congressional action, but in 1935 the House threatened to dis­ cipline the press corps for reporting the results of a teller vote. ^ A teller vote is one of the devices the House uses to avoid having each member placed on record on a particularly “hot” issue. Sometimes, however, it is used merely to expedite pass­ age of minor measures. In 1935, the House was considering a bill to forbid holding companies which controlled many public utility companies. Aware that the decision would come by teller vote rather than by a roll call, the W a s h in g to n D a ily N e w s in an editorial on June 30, 1935, served notice it would attempt to record the vote. (3) Fourteen Scripps-Howard reporters came early to get front seats in the press gallery. As House members filed past two tellers, Scripps-Howard reporters kept tally. The next day the D a ily N e w s reported the bill had lost, 152 for, and 224 opposed. (4) Actual figures later were disclosed

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THE NEW SPAPERM AN A N D THE LAW

as 146 for, and 216 opposed. The N e tv s invited any Congress­ man who wished, to call up and have his vote changed if the paper were wrong. Only two availed themselves of this op­ portunity. Some House members demanded the press be disciplined, but none apparently wanted to take the initiative. The Speaker rebuked the press and subtly reminded it that reporters had no legal right to be there, and the flurry ended. ^ Long usage, however, sometimes gives “unofficial privilege,” and today no one can conceive of a time when reporters will not be permitted to go about the job of covering Congress. A member once expressed his views on the importance of re­ porters by reminding a colleague who was droning on and on that he might as well cease talking because “the gentlemen in the press gallery have stopped taking notes.” The member, glancing at the press gallery, confirmed his colleague's obser­ vation, and promptly sat down. (5) The British House of Commons maintains the same fiction as the American Congress. Reporters are simply “strangers in our midst,” and since no official attention is called to their pre­ sence, no action is taken. But more than a quarter of a century after American reporters had comfortable places to write up Congress, British correspondents in the House of Commons were still sitting on the steps or any vantage points they could seize. The Commons long since has provided press galleries. In 1949, the Commons did recognize the reporters “unofficially” by grant­ ing them permission to work without their coats. (6) Proceedings of Congress, in the chambers and in the com­ mittee rooms, carry absolute privilege for members who may express themselves freely without being held legally account­ able for their remarks. What members say officially, the press can report without fear of libel suits. A “fair and accurate re] port of a legislative proceeding” absolves a newspaper from libel l under the principle of qualified privilege, no matter who may be damaged by the story. N

When a congressional committee moves to any part of the country for a hearing or investigation, privilege goes with the

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members. Tbe press can report those proceedings with the same immunity as actions within the halls of Congress itself. ^ Legally, a member away from Washington on congressional business has no privilege for statements made on his own initia­ tive or for remarks not a part of the official proceedings. Courts, however, have been liberal in interpreting what is “official con­ gressional business.” A committee touring the country on an investigating mission often releases statements or comments be­ fore returning to Washington, (in theory, the committee should make no statement until it transmits its report to Congress, but there have been no successful libel suits growing out of these away-from-Washington comments!) v ^ A reporter, however, should exercise care in printing such material, particularly if the statement is merely the expression of one or more members and not of the committee as a whole. Congressmen while on such trips often are wined and dine, but the speeches they make at banquets can hardly be classified as “official business.” ^ A member of Congress on a campaign swing, however, is a private citizen. He then is accountable for what he says, and the press is responsible for its reports of such statements. Repu­ tations cannot be traduced with impunity under such circum­ stances. The Senate, which must ratify treaties, may bar reporters and go into executive session to consider such documents trans­ mitted to it by the president. ^ Treaty-making was once an important part of American diplomatic procedure. President Washington was incensed, and foreign ambassadors to the United States were thunder-struck by the temerity of newspapers in printing the text of the Jay Treaty with England before the Senate had ratified it. ^The United States now uses executive agreements in its for­ eign relations more than formal treaties. Secret hearings of the Senate have been few in recent years and ineffective. If the Senate is to consider a treaty, every senator, by the time the docu­ ment reaches the Senate, has publicly declared his stand so that a secret session would be anticlimatic.

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^ Executive sessions for ratifying treaties or for other matters have been mere formalities in modern times. Each reporter simply "waylaid” his "favorite” senator, and few were reluctant to talk. Sometimes the presiding officer, for the record, re­ minded senators the next day that executive sessions were se­ cret, and thus having done his duty, the matter ended. In 1848, a N e tv Y o r k H e r a ld reporter was jailed for con­ tempt for printing a treaty then being considered by the Senate in executive session, but today such action probably would find little support. (7) | No libel suits have grown out of any secret session but pre?sumably qualified privilege does not attend upon matters which ] technically the press has no right to publish. The few secret committee meetings also receive about the same treatment, for in some mysterious manner the committee rooms develop "leaks” despite the solid masonry of the Capitol. Many times, a member disgruntled by committee action, leaves early so that his side of the debate can “leak out” first, and thus get the "news play.” In 1937, two correspondents made a wager as to how many members they could persuade to dis­ close what had happened at a secret conference. Within a short time, they had information from 13 of the 17 senators who had participated. (8) The House can go into secret session whenever “confidential communications” are received from the President, but in mod­ em times apparently no such "secret information” have come from the White House. Committees from time to time do re­ ceive “confidential documents” from the President. Most of them deal with defense matters which the press respects; the contents of the others appear soon in print because reporters seem to have remarkable acumen in “guessing” at what they contain. ^ Aside from the flurry over the House teller vote, the chief | disputes between Congress and the press in recent years have | been over release dates and the refusal of reporters to divulge i the sources of their information. In 1930, a House committee was angered because several papers broke a release date in printing tax refunds. The com-

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mittee made the information available December 8 with a D e­ cember 29 release date in order that stories could be mailed to member’s papers by press associations or moved during slack times on their regular news circuits. Chairman William Wil­ liamson threatened to revoke such courtesies in the future if the newspapers persisted in violating release dates. (9) Several times individual newspapers or reporters have aroused congressional wrath by premature releases, but in most instances Congress accepted the explanations that these violations were unintentional, and no formal action was taken. Of course, Con­ gress could refuse to give out any information in advance, but it shows no inclination to penalize the whole press corps for spasmodic actions of a few members. Press associations often penalize member papers who refuse to abide by release dates on stories sent in advance. The problem is simply a “gentle­ man’s agreement,” without standing in law. If a newspaper violated a release date and later Congress revised its report, an interesting legal question would arise as to whether the premature story carried qualified privilege, or whether it, in effeet, was like court testimony that a judge ordered stricken from the record.

[ n | I I

In the same classification of “gentleman’s agreement” is “off-the-record” news. The only recourse of the official whose anonymity is not respected is to deny the statements and to bar offending reporters from future press conferences. For a time, “off-the-record” conferences threatened to become a major press problem as many petty officials began taking refuge in that method to avoid responsibility for information they wished printed. By tacit agreement among themselves, press repre­ sentatives began to “smoke out” these anonymous sources. The “off-the-record” technique is used now principally for back­ ground material to round out a story. Twice in the last few years, congressional committees have f! tried officially to force reporters to disclose the source of their ■ information. Both times members of Congress admitted that j “newspaper ethics” were stronger than any of their pleas or j threats. During the war, an Ohio paper charged that merchant sea­ men had refused to unload a vital war cargo on Sunday at

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Guadalcanal. The city editor declined to tell a subcommittee of the House Naval Affairs Committee the names of the ma­ rines who provided his information. The committee did not press him for the names but com­ mented: “It would have been helpful, had the paper seen fit to sub­ mit to us these names, which we assured the publisher would be kept in confidence so as to minimize the possibility of mili­ tary recrimination. We are aware, however, of the customary practice of newspapers in not revealing the sources of such stories.” (10) In 1945, Albert Deutsch, a reporter for the N e w Y o rk PM, wrote a series of articles criticizing the medical program of the Veterans Administration. All he would tell the House Veter­ ans Affairs Committee was that most of his material came from ‘‘five officials” of the administration. The committee voted 13 to 5 to cite him for contempt. (11) Four days later, how­ ever, Rep. Edith M. Rogers, Massachusetts, a member of the committee, said the "Deutsch case is dead.” (12) The commit­ tee never sent the contempt citation to the Department of Jus­ tice for prosecution. The committee’s action loosened a storm in Congress. One member of the committee denounced it on the ground that the committee “is supposed to be investigating veterans’ facilities and not newspapermen.” (13) Later, Representative Rogers declared the contempt cita­ tion should be rescinded because “it isn’t fair to the press here on the Hill.” (14) The Republican leader in the House, Joseph W. Martin, Jr., himself a newspaper publisher in Massachusetts, told the House: “As a newspaper publisher I know that a good reporter never discloses the sources of his stories if he is requested to keep them confidential.” (15) Rep. M. J. Monroney, a former political writer for the ScrippsHoward s O k la h o m a C i ty N e w s , went even further: “The committee's action strikes at one of the most funda­ mental rights of a free press. If any government body can muzzle the press by forcing a reporter to disclose news sources

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that are confidential, then all newspapers will eventually face disintegration and deterioration to mere bulletin board exist­ ence.” (16) Through editorials and resolutions, most of the nation's press joined in condemning the action of the committee. (17) Legally, Congress could have compelled both the Ohio city editor and Deutsch to disclose their sources or go to jail for con­ tempt. In 12 states, (as will be noted later) reporters by statute need not disclose their news sources, but there is no such pro­ vision in federal law. Except for these infrequent clashes with congressional com­ mittees, reporters roam pretty freely about the Capitol and the Senate and House office buildings. Newspapermen covering com­ mittee hearings often pass up questions which members later put to witnesses and also provide information that committee in­ vestigators may not have uncovered. It is not unknown either for a senator or representative to issue a “ringing statement” that was bom in the typewriter of some correspondent. (18) Although reporters are not permitted on the floor of either house, few representatives or senators ignore the word that a newspaperman is waiting to see them in the cloakroom. In 1931, there was a move to restore to newspapermen an old privilege of access to the Senate floor, but die resolution did not pass. Newspapermen, as a group, felt there was no need for this privilege since contact with members can be made so easily. (19) When committees meet to draft a final report on bills, many times after public hearings, the press is excluded. News of committee action^ however; quickly bobs up in the press. In 1950, the powerful House Rules Committee by a tie vote, re­ fused to speed to the floor a Fair Employment Practices bill. By the time committee members had returned to their offices, newspapers were printing the exact vote in that “secret ses­ sion,” and the House took no notice of the “leak.” (20) Some of this camaraderie between press and Congress is explained by noting that 34 members of the 81st Congress were newspaper publishers or editors. (21) Most of it, however, is due to the fact that a member of Congress needs the basking

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light of publicity for political health as much as he requires the ultra-violet rays of the sun for physical well-being. The Press and the Administration: In “downtown” Washington the situation is a little different. It’s physically impossible for even hundreds of correspondents to cover administrative Washington without the help of depart­ ment press agents. For most routine news, the press agents “handout” is adequate, but good correspondents use their own initiative to ferret out stories. Even the staid old State Departmen has discovered frequently that news just can’t be “bottled » up. Most policy-making officials, from the President on down, hold regular press conferences. A Washington official can evalu­ ate his “importance” objectively by simply noting how many and what reporters show up at his press conference. One of Franklin ID. Roosevelt’s secretaries of state saw at­ tendance at his conferences steadily dwindle although normally the Department is a fertile news source. The secretary, inept at handling such meetings, frequently was outmaneuvered by the correspondents and finally took refuge in innocuous state­ ments. Reporters do not troop into conferences merely to get polite comments about the weather nor for learned discussions on the proper spelling of Chinese cities. On the other hand, the Department of Agriculture, which might be expected to yield mostly routine news, periodically has one of the most spirited conferences. These lively con­ ferences come on the day the Department releases crop estimates. A Department official holds the printed copies of the report and watches the clock. When release time arrives, the official dumps the copies on a desk and steps back as gingerly as a hockey referee putting the puck in play. Reporters grab and streak for a telephone. Handling of administrative news differs from coverage of Congress primarily because the courts are not in agreement on what privileges attach to departmental information. It is well| established that administrative officers, in the performance of ft their duties, have absolute privilege, the same as the legislative '1and judicial branches of government. The lack of uniformity

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comes in the courts’ interpretation of how far official action carries qualified privilege for newspapers. Some officials, such as the attorney general, have a quasi- / judicial function. An official action by the attorney general/ then in all likelihood would carry qualified privilege for the press. One complication comes because officials play several dis­ tinct roles. The President, for example, is chief executive, titu­ lar leader of his party, and a citizen. The governor of a state plays the same multiple roles. No one, however, is going to sue the President on the ground I that his utterance overstepped the absolute privilege of his ’ office. It is hardly likely either that any one will sue a news­ paper for libel for printing a story based on presidential re­ marks unless the paper should stray far afield in its comment on those utterances. The President is quoted only with his permission. Some presidents have been reluctant to give that permission, and news­ papers then have been forced to set up the subterfuge of a “White House spokesman.” During the Coolidge administration, a New York paper, irked because the president refused to be quoted, described the “White House spokesman.” It was no coincidence that the description fitted Mr. Coolidge perfectly. At times, the “White House spokesman” may be the Presi­ dent, and at other times it may be one of his official aides. Only the correspondents know. Most direct news from the President comes from his regular press conferences. Deskmen even on the smallest papers know when these conferences are held be­ cause over the wire comes a flood of bulletins all starting: “The President is reported today to be considering this or that.” Moving down from the President, the situation becomes more muddled. If the Secretary of the Interior, for example, announces that a contract with a company drilling oil on a gov­ ernment reserve is being canceled because the firm is guilty of fraud, a newspaper could print the news with reasonable safety. But if the Secretary merely says he h e lie v e s the company m a y be guilty of fraud, the press should tread warily. Of course, it is inconceivabIe~that a cabinet officer would be that reck­ less with charges.

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The increase in the number of Washington columnists has added, a further problem. Many columnists write of rumors that most newspapers would not touch if the gossip originated in their home cities. Somehow, many newspapers must feel there is magic in a columnist’s name or in the fact that his story came over the wire or by special delivery mail. There have been a ! number of libel suits arising from statements in Washington j columns. Gossip and rumor seldom carry, privilege unless the | story can be defended on ground of fair comment and criticism 1\ about the acts of a public official. The courts have held that a War Department report does not carry qualified privilege. A New York paper paid because it printed a “slacker list” that came to it in an official War De­ partment release. (22)

!

During World War II, the commanding general of an army reception center provided a newspaper in his area with regular lists of men who had been inducted by draft boards but who failed to arrive at his camp. The newspaper wisely refrained from printing the names and explained to the puzzled general that he should turn over his information to proper federal au­ thorities and if charges of draft dodging were brought formally, the newspaper would be glad to publish the news. An inductee, with the best of patriotic intentions, might fall from a train enroute to the reception center, miss connections, get hit by a taxi, become ill suddenly, or suffer amnesia. The general finally saw the point when one absentee wired from a hospital that he had left a train to undergo an emergency operation for appendicitis but expected to report within two weeks. Had the paper hinted that this draftee was a “slacker” it would have been l i able*. \ \ la *• \ Washington is filled with administrative commissions and independent agencies. Those which conduct hearings, frequent­ ly permit the press to attend, especially if one or more parties to the dispute request it. Mere permission for the press to at­ tend, does not in itself carry qualified privilege although there is a trend in that direction. However, there would be no privi­ lege for any remarks the trial examiner makes to reporters out in the hall.

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The right of newspapermen to attend hearings of federal administrative bodies and independent agencies has never reached the courts for interpretation. In theory, many such meetings can be closed to the press, but Washington today is operating on a more practical basis. A congressman once attacked from the floor a decision of the Internal Revenue Department to bar newspapermen from a hearing on a tax on oleomargarine. He complained because he said representatives of farm and dairy interests and lobbyists were admitted. “In this case,” he told the House, “the Press would have served a particularly helpful function in bringing this important question before the people/ ’ (23) Three Houston, Texas, reporters who showed up to cover an immigration hearing were barred but they got a stepladder and looked in the transom. A harassed examiner called upon a United States attorney for advice. The attorney said the news­ men could not be routed from their perch. The examiner then covered the transom with cardboard, and the hearing resumed. (24) Fortunately, the matter of privilege for what they printed never came up. There are more grounds for claiming qualified privilege in I official decisions of commissions and agencies than there are | at the actual hearings. Newspapers, for example, for years have printed decisions of the Federal Trade Commission that have reflected unfavorably on companies and corporations. Other important sources of Washington information are pub­ lic records. Definitions of what a public record is are about as plentiful as definitions of news. If the law requires a public officer or a public agency to keep a written document of offi­ cial acts that document is a public record. (25) Under the demo­ cratic theory of government, citizens should have access to all public records, or at least those citizens who have a legitimate interest in them. Information taken from a public record car-| ries qualified privilege provided the newspaper doe£ the most bitter legal fights in criminal trials have come aboijt through the ef­ forts of the defense to prevent the introduction into the evi­ dence of a confession the defendant made to police. If defense ^ counsel can show the confession was made under duress or co­ ercion or even under the threat of duress or coercion, the courts usually will bar its use by the state. The courts also will not permit a confession to be used as evidence if counsel can show the defendant was not aware of his constitutional rights. The . constitution does not compel a man to testify against himself either in a confession or from the witness stand. The courts also generally will bar the confession if defense show the prisoner made it on the promise, direct or implijfed, that he would profit from it by having the charge re­ duced or by having the district attorney recommend leniency\j To aid the state in having a confession introduced into evi­ dence at the trial, police officers insist that the suspect agree to a “preamble” declaring the statement is being made with­ out “threat, duress, coercion, or promise” and that the prisoner is aware of his constitutional rights. If a paper prints a confession and later the defendant is ac­ quitted by a jury, he probably has a good case of libel. His case is strengthened if at the trial the court refused to admit the confession into evidence. An acquittal means legally that the defendant did not commit the crime with which he was charged, no matter what people in the community may think or believe. Therefore, to have printed that he did commit the crime, even by his own admission, is dangerous. If the con­ fession were barred from the trial, it means the court found it was obtained illegally which is further damaging evidence against a paper in a libel suit.

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A confession, always dangerous to print, becomes an even greater risk if the statement implicates other persons. The prisoner who confesses may be naming others just for spite.” One man, arrested in the holdup of a gasoline station in which an attendant was wounded seriously, implicated two friends as being with him. Later it was proved that, although the two friends had been with him that night, they left him several hours before the holdup and had no knowledge that he was planning a robbery. A paper which printed the confession naming the two friends was fortunate to escape liability by publishing a correction and an apology. The two men were satisfied that the apology re­ stored their standing in the community and did not press for damages. It is not fantastic to say that the confession even of a mur­ derer may flare back on the paper which prints it. An Indiana man was convicted of murder and the execution date set. But his lawyers, after a two-year fight, won a reversal from the United States Supreme Court which ordered a new trial. By that time, the state’s principal witness had died. The district attorney felt he could not hope for another conviction and he reluctantly was forced to ask for a dismissal of the charge. He and others in the community had no private doubts as to the guilt of the man but the case went back into the files among the “unsolved murders.” Confessions are “news,” and few papers refuse to print them. If the defendant later is convicted and denied an appeal, the paper is fairly safe. But an acquittal gives it cause to be con­ cerned. As long as prisoners confess, papers probablv will pub­ lish the statements, but the press should be aware that this is one story that legally may be “highly inflammable”. About the only defense for the paper in event of a libel suit is to prove that the confession actually was made and signed and then hope that the jury will regard it as a report of an event and not as the paper’s inference that the defendant was guilty of the crime charged against him. It is not a good legal defense but it may mitigate damages which is about all the paper can expect under such circumstances.

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Resume and Analysis: In only a few states is the as a public record either by statute, city ordinance, or court de­ cision. In jurisdictions where the blotter is a public document, qualified privilege is possessed only by the information taken accurately from the blotter. There is no privilege for any ad­ ditional facts obtained from police or from private citizens. Where the police blotter either is not a public record or its status has not been determined, the press is liable for all the information it prints about crime. Since even in protected jurisdictions, the general practice is to add to the bare facts on the police blotter, the paper’s "first line of defense,” as the Judicial Council of Massachusetts suggests, is truth. "Privilege is a second line of defense.” (24) Since the police beat is a fertile source of news, there have been endless disputes between press and the police. Philadel­ phia reporters discovered that in a neighboring township three bankers were involved in a country club brawl in which a police­ man was beaten. Township police merely noted the arrests on the blotter and beside them wrote: "not for newspapers.” The papers dug around and unearthed the facts but later the charges were dropped without a formal hearing. Their stories then had no legal sanction but none of the bankers brought an action against the papers. (25) Truth would have been the only defense left to them. A Detroit chief of police became embroiled with police reporters and photographers because he insisted that each one take a "loyalty oath” to show he had no affiliation or sympathy with the Communist party. His ruling was fought bitterly in Detroit as an unwarranted interference with the press and as infringement on personal liberty. A survey by 'Editor a n d P u b ­ lish er showed publishers and newspapermen over the country were divided on the question. Later, the order was modified to exclude reporters for Detroit dailies. When the police chief finally issued press badges, after withholding them for months during the argument over the loy­ alty oath, the press found they were exact duplicates of police

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sergeant badges with the exception of the word “reporter” in small type. The similarity led to many mixups. Some newspapermen found people talked more freely at the sight of their badges and presumably the newsmen did not call attention to the word “reporter” on them. One reporter, on the way downtown by bus, decided this transportation was too slow. He alighted and hailed a taxi. The driver noticed the badge and sped him to headquarters. He waved aside the proffered fare with the assurance: “Always glad to do the department a favor, officer.” The furore over the loyalty oath ended when the incoming mayor appointed a new police chief. (26) The mayor of Phoenix City, Alabama, in 1949 rescinded, in effect, a three-year-old order forbidding the police blotter to be inspected by anyone. The new order said there would be no objection to anyone looking at the blotter “as long as he did not defame the city.” The prohibition had gone into effect after newspaper criticism of the handling of gambling cases. (27) In 1950, the press and radio in Baltimore won an 11-yearold fight over the publication of crime news. After a bizarre murder in 1939, the Supreme Court of Baltimore promulgated a press “code,” Buie 904 of which prohibited the publication of confessions and certain other “pre-trial statements.” The battle drew to a climax in 1948 when an 18-year-old girl was found strangled in an automobile. Beside her body was her fiance in a serious condition from what police said were self-inflicted bullet wounds. Before lapsing into a coma, the youth made statements to police. Baltimore papers, in printing the story, alluded to the statements but carried an editorial note informing readers that Rule 904 prohibited them from disclosing what the youth had said. Washington papers printed the statements and sent copies into Baltimore. Later five Baltimore radio stations and a news commentator carried the statements and were adjudged in con­ tempt and fined.

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Maryland papers outside Baltimore began showing concern when the other courts indicated the “code” might be adopted state-wide. The Maryland Court of Appeals, with one justice dissenting, reversed the convictions on June 8, 1949, and held invalid the section of Rule 904 under which the men were found guilty. In January, 1950, the United States Supreme Court refused to grant an appeal to the state of Maryland. (28) In New York City, police have established more friendly relations with the press. The New York police department, in drawing up a new “Public Relations Manual,” inserted a sec­ tion directing officers to cooperate with the press by releasing promptly “such information as is permissible.” The section con­ cluded that: “. . . a cooperative attitude (with the press) and a ous explanation when necessary (to show why certain tion cannot be divulged) will usually result in a more presentation of the facts from the police viewpoint.”

courage­ informa­ desirable (29)

From time to time, newspapers in states where the police blotter is not a public record, have threatened court action to obtain access to the docket, but finally had to admit that there was no legal remedy in the absence of statutes, charter provisions, or court decisions. (30) Some newspapers like to break in new reporters by putting them on the police beat on the theory it quickly teaches them accuracy and attention to details. Papers with more prudent editors assign only experienced men to the police run. Teach­ ing a man the lessons of accuracy may prove expensive for a newspaper. For the police beat which is one of the best sources of news is also the area of the newspaper’s biggest legal headache. For Further Reading For a detailed study of the status of the police blotter in the several states see:

Steigleman, Walter, “The Legal Problem of the Police Blotter,” Journalism Q u a rterly, March, 1943. For a fuller discussion of the dangers in the printing of confessions see: Steigleman, Walter, “I Confess —But It May Be Libel,” Q uill, Nov. 1944. COURT DECISIONS Courts have been concerned with the status of police news for at least 100 years. One of the earliest cases which determined that there was no privilege in police news was: Cincinnati Gazette Co. v. Timberlake, 10 Ohio,

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548, decided in 1860. Statutes, ordinances, and decisions have since modified that interpretation in a number of jurisdictions. The recitation of a pertinent point or two from a decision may be misleading or too assuring. The cases should be read in their entirety. Some leading cases other than those already cited dealing with police news are: McAllister v. Detroit Free Press Co., 43 N.W. 431. Hubert v. New Nonpareil Co., 82 N.W. 928. Norfolk Post Co. v. Wright, 125 S.E. 656. Burrows v. Pulitzer Publishing Co., 255 S.W. 925. Switzer v. Anthony and Denver Express Publishing Co., 71 Colo. 291. Behrendt v. Times-Mirror Co., 96 Calif. App. 3. Republican Publishing Co. v. Conroy, 38 P. 423. Dement v. Houston Printing Co., 37 S.W. 985. McClure v. Review Publishing Co., 80 P. 303. Houston Chronicle Publishing Co. v. Bowmen, 182 S.W\ 61.

CHAPTER IX

"R e p o rtin g Crim e a n d C ourts" The Press and the Minor Judiciary The underlying theory of the American legal system is based on two assumptions: (a) a person accused of a criminal offense is presumed to be innocent until he is proved beyond a reasonable doubt to be guilty, (b) the accused person is entitled to a fair hearing or trial. (1) If every minor offense such as spitting on the sidewalk, walk­ ing over a newly-planted lawn, driving with one headlight burned out, etc., were permitted to go into county court for a trial be­ fore a jury, the courts either would become so congested there would be long delays or else the number of judges necessary would be so large as to cause an undue hardship on taxpayers. For those reasons, every state has set up what is popularly known as the minor judiciary. Members of the minor judiciary are known by such various names as justices of the peace (squires), aldermen, police magistrates, et al. Most of these minor jus­ tices are elected by the voters and their powers are prescribed rigidly by law. In minor cases, they have final authority known as ^summary conviction. Unless the law specifically permits a jail term, a man accused of spitting on the sidewalk may be fined a few dollars and costs and committed to prison only if he fails to pay. Minor traffic offenses provide only fines in the absence of contrary statutes. From such minor charges, there is no appeal unless the ac­ cused can show a violation of his con^itutional rights or that the justice was influenced by factors other than facts. Many such cases involve nothing more than the accused’s word against that of the arresting officer. 117

,^

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THE NEWSPAPERMAN A N D THE LAW

The magistrate usually lends more weight to the evidence of the arresting officer than he does to the defense. For one thing, the arresting officer is supposed to be “neutral” and have no other motive than performance of his duties. The “sour note” in the system comes in the fact that most minor justices are paid only in fees. If the case is dismissed for lack of evidence or other reasons, the justice receives no money. The traffic officer who feels a justice seems to side with the motorist, is apt to find ways to take his “business” before some other squire, and the justice discovers his receipts suffer. Ap­ pealing such a case is expensive, and a motorist who consci­ entiously believes he is in the right, may decide it is cheaper to pay the fine. Such appeals also are difficult to win because the county court will not reverse the justice unless it can be shown definitely that he was in the wrong or exceeded his authority. In more serious offenses, the justice sits only as a committing magistrate. He decides whether or not there is enoughevidence to bind the defendant over to the county or district court and the amount of bail that should be required. If the bail seems excessive, the defendant can ask the county court for a reduction. If the justice decides the evidence does not warrant holding the accused, the district attorney may over­ rule the decision and the defendant finds himself re-arrested. A murder suspect, for example, is entitled to a preliminary hearing before the minor judiciary, but the justice except in unusual circumstances has authority only to go through the formality of binding him over for action by the county grand jury. But no matter whether the offense is a major or minor one, when the justice mounts his bench (which may be just a chair in his ordinary business office), he assumes most of the prerogatives of the county court. He can hold the defendant, a witness, or a spectator in contempt for disturbing the proceedings or for any other cause that would bring similar action in the county court. For his official actions, the justice is accorded the same ab­ solute privilege as the judge on the county bench, provided he

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does not abuse his office. The justice, for example, could not say he was not fining a traffic violator because if he did “some one at City Hall would just steal the money anyhow.” Nor can he use his office for unwarranted attacks upon persons not a party to the proceedings. The county coroner, at a formal hearing or inquest, is a minor justice. He, too, just as the other justices, can issue subpoenas for witnesses, compel a party to the case to produce certain rec­ ords, and in general proceed as though the case were being heard by the regular county court. The justice also may sit in equity in minor matters. Through an injunction by a justice, I can restrain the man who continu­ ally walks over my flower bed or who permits his dog to run over my garden or property. When the justice holds a hearing or takes official action, the newspaper may print “a fair and accurate” report of the pro­ ceedings under qualified privilege. It may not embellish its re­ port just to “liven it up” or to turn it into a sparkling human interest story. Most justice hearings are more informal than those before the county court and at times there may be con­ siderable “by-play” on the part of the participants. The re­ porter who seizes upon this “by-play” as the best part of the story may find he printed it at his own risk. Many times, too, a participant, mistaking the general informality for license to “wise crack” may call out a remark that “brings down the house.” As far as the reporter is concerned, he must realize such re­ marks are those of private citizens. If they are defamatory, he may find himself in trouble for printing them. (2) Once the justice has rendered his decision, the newspaper may criticize the case just as it comments on actions of the county court. The paper, however, may not hold the justice up to ridicule nor can it infer that his decision was based on any factors but his findings of fact and conclusions of law. An Iowa justice received considerable newspaper attention because he held court in the rear of his taproom. A newspaper was free to express the opinion that justice should not be dis­ pensed in a tavern but it could not imply that either the justice

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or participants in a case tarried too long in the front of the shop before court opened. Records^ of the minor judiciary are open for inspection. The public has the right to all information necessary to evaluate the operation of its legal system, from the lowest to the highest court. (3) The remedy for a paper denied access to such records is a writ of mandamus from the county court. The Grand Jury The defendant bound over to county court by a justice finds the next stop in his case is the grand jury. The number of grand jurors varies from six to 23 in the several states. (4) Only the state’s case is presented to the grand jury. The defendant cannot appear nor be represented there by counsel. The jurors examine the evidence and determine if it is sufficient to warrant the case going to trial. The proceedings of the grand jury are secret and may not be published, even if known, until a formal report is made. The grand jury either returns a “true bill” which sends the case to trial, or returns a “no bill,” popularly known as a refusal to indict. A “no bill” ends the case. The grand jury also has wide investigating powers. It may look into any matter in the county which it believes needs in­ vestigation. The investigation may come on the jury’s own initiative or by direction of the court. While investigating, it has power to subpoena witnesses or records and may hold in contempt witnesses who refuse to appear or who balk at testi­ fying. The grand jury also examines county institutions, such as the jail or almshouse, and makes such recommendations it believes necessary or desirable. Since its proceedings are secret, there isxio privilege attached to publication of them. Should a newspaper have a “pipe line” into the jury room, it can be cited for contempt for printing the day-by-day proceedings. A reporter, however, can take a position as near to the room as permitted and print the names of witnesses he sees entering. In many jurisdictions a list of witnesses called is

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made public by the grand jury usually through the district at­ torney. Their testimony, however, is kept secret. In some states, a witness before he enters the grand jury room may give a reporter the gist of what he expects to testify. Once he is before the jury and is sworn, he usually is bound by secrecy and may be cited for contempt for disclosing his testi­ mony, along with the paper that prints it. The inexperienced reporter covering his first grand jury often will save himself and his paper grief by consulting the district attorney and the judge. A Pennsylvania grand jury, investigating charges against high state officials, attracted reporters from a number of cities. The judge assigned to preside met with reporters daily to “brief” them. Reporters talked freely with witnesses on the way in and often as they emerged. On the basis of such information, one newspaper predicted what indictments would be returned and against whom. The story was so accurate that after the trials, a convicted state official cited it in his appeal as evidence that the grand jury proceedings were not secret as required by law. The supreme court rejected the appeal. In another juris­ diction, such procedure by the reporters might have involved them in a contempt citation, especially if they had not worked so closely with the presiding judge. When the grand jury makes a formal report to the court, its statement becomes part of a judicial proceeding and carries qualified privilege. (5) Many times a grand jury may indict as a result of its investigation and the person named may not yet be under arrest. The customary procedure is for this indict­ ment to remain secret until the judge issues a bench warrant and the sheriff serves it. Otherwise, premature publication might warn the defendant in time for him to leave the juris­ diction. Since a grand jury’s report is often brief and stated in legal phraseology, the district attorney may fill in reporters. In some jurisdictions, the statement of the district attorney is re­ garded as part of the grand jury proceedings; in other juris­ dictions the courts hold it is “mere conversation.” “Conversa­ tion” can be defended only by truth or, in some circumstances, by a plea of fair comment.

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The Press and the Courts When the actual trial begins, the reporter is on probably the safest ground since the crime was committed. \ A fair and accurate report of a judicial proceeding carries qualified privilege.) The reporter not only sits in court but, as pointed out in an earlier chapter, he generally finds certain conveniences pro­ vided for him. The position of the press table usually enables him to see and hear clearly every part of the proceedings, even to “eavesdropping” on conferences between judge and counsel as the lawyers huddle around the bench. How much of such overheard material he may use depends upon the sub­ ject being discussed and the ruling of the judge. The results of most such conferences show tip in a formal ruling from the bench and then may be printed. A fair and accurate report does not mean that equal space must be given daily to both prosecution and defense. Since the state presents its evidence first, early days of a trial look mighty dark for the defendant. The district attorney presents witness after witness whom he expects will add to the web of evidence he is trying to weave. The press may report all such testimony, no matter how damaging it may be for the defendant. After each state witness completes his testimony, he is subject to cross-examination by defense counsel. This cross-examination may bring out facts favorable to the defendant which the re­ porter notes, not only because he wants to be fair, but because it is news. The reporter’s job is to tell the reader what is hap­ pening and not to take sides. When the state rests, the defendant gets his day in court. Then, witness after witness will take the stand to refute the testimony offered by the state. The reporter doesn’t have to worry about giving the exact space to the defense as it did to the prosecution. The prosecution may have presented its side on a day when other news was light and much space could be devoted to the tria l. On the day the defense opens, community or world-shak­ ing events may trim the space that can be devoted to the case. Or the defense testimony may be nothing but straight denials of that presented by the state. If the state received a front-page

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streamer for each of its days of testimony, however, and the de­ fense story is relegated to the classified advertising page, the paper's fairness is open to question. Court coverage, however, is not based on the mere number of inches given to each side but on fairness and accuracy. The court is concerned with see­ ing that the defendant receives a fair trial; the newspaper must be concerned with seeing that he is given a fair presentation of his story. If the reporter observes court rules and is accurate, there are only two chief problems that need worry him. One is to re­ frain from interposing his own comments in the story. He is not there to sit in judgment and must not express his opinions as to the guilt or innocence of the defendant. He also must not imagine he has a sport spectator's prerogative of criticizing the officials—judge, counsel, or jurors. His own sense of ethics must be his guide as to whether he writes: “The witness trembled at the question,” or “the defend­ ant clutched his hands nervously.” A witness who hesitates be­ fore answering a question is not necessarily panicky or clever. He may be only trying to arrange his thoughts before speaking. To infer, then, that the question had the witness “on the ropes” or that the witness “sparred for time,” may not only be inac­ curate but also unfair. The reporter who writes that “the dis­ trict attorney scored heavily,” may be chagrined an hour later when defense counsel neatly parries away the effect. Ordinarily, the court takes no notice of such comments. But if the reporter strays too far from facts the judge may snap him back or even bar him from further session. Too drastic comments may lead to a contempt citation, especially if the jury is permitted to go home at night. Although such jurors are in­ structed not to read about the case, courts recognize the weak­ ness of human flesh to seize upon printed accounts of an event in which they are playing a part. The second area of danger comes in testimony or remarks ordered stricken from the record. A court trial cannot be con­ ducted under the rules that govern a deliberative body such as a legislature where there is great freedom of discussion. Courts must have relevancy rules or otherwise an attorney or witness

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might talk at length on issues that have no bearing on the case, and which might be prejudicial to the defendant. When coun­ sel asks a witness if he were at a certain place at a designated time, the witness is expected to answer “ y e s ” o r * no*” Neither the lawyer nor the court wants the witness to launch into a re­ cital of his daily activities, his state of health, or his philo­ sophical or political beliefs. An irrelevant or immaterial remark or comment is ordered stricken from the record, and the jury is instructed to disre­ gard it. The remark may be good news and the reporter may dash to a phone to give it to his office in time to make an edi­ tion. While he is absent, the remark may have been stricken from the record. When the reporter resumes his seat, he should check with a colleague to see what happened in his absence. Remarks stricken from the record are presumed never to have been said. Therefore, they carry nc^j^rivilegc. The only de­ fense a reporter would have either lu a libel or contempt action, would be to plead that mechanical problems prevented the paper from killing the item. If the paper were just locking up when the reporter's phone call came with the new lead, the next edition might be run off before the court strikes out the statement. The statement, however, should be taken out of the next edition and not used thereafter. Sometimes a remark made is not ordered stricken until the next day's court session. The assumption is that the first print­ ing carries qualified privilege because when it appeared in the paper it was still a part of the official proceedings. But no privilege would attach to it if published after the court's order is made. Often when a remark is made, the judge may say he will permit it to stand subject to a motion by counsel to have it stricken. That should be a warning to the newspaper that it should handle that statement cautiously. The more important the age will be easier because terest in it and sets about This is particularly true of reporters.

case the more likelihood the cover­ the judge recognizes the great in­ to establish liaison with the press. cases that attract many out-of-town

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The judge may meet with press representatives himself or appoint a liaison man, usually a newspaperman he knows. The judge tells reporters of the conduct he expects from them, what privileges they will have, what restrictions, and also about tak­ ing photographs. A violation of any of these rules may bar the offending reporter from future sessions and also lead to his ci­ tation for contempt. Most courts frown on pre-trial conferences between press and lawyers if for any other reason than to be filled in with background. It helps a reporter to understand the future testi­ mony of a witness if counsel explains just what he hopes to de­ velop. Many lawyers go beyond that and attempt to get a favorable press by disclosing that they have a witness who will prove certain points or by revealing the results of investigations conducted under their direction. Such statements are on the borderline, and the reporter should be wary of his use of them. It is not uncommon for counsel to contend that publication of such statements prejudiced his case. If the court agrees and orders a mistrial, the newspapers which printed them are not likely to escape unpunished. Trials must be conducted in the courtroom and not in the press. One Iowa newspaper discovered how closely counsel will work with the press, especially local papers. A trial was at­ tracting nation-wide attention with the result that dozens of out-of-town reporters were there. The local paper discovered that most of the readable news came after it had locked up its last afternoon edition. As a result, a morning paper in a nearby city was able to flood the local community with more “real news” than the home-town paper published. After several days of seeing a morning paper get all the play, editors of the local paper had an informal talk with state and defense counsel. From then on, headlines were made early enough for the local paper. If the judge were aware of the new procedure, he gave no official inkling. Since the material was to be presented anyhow, the defendant did not suffer. On an important trial, attorneys for both sides may have copies of their closing summations made for the press although most lawyers like to speak extemporaneously in order to press

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to the fullest any favorable reaction they sense on jurors' faces. The judge, since his charge to the jury must be exact and pre­ cise to avoid having it cited as one ground for an appeal, usually reads it from a prepared manuscript. H e generally will have copies for the press because a reporter has difficulty grasping the legal technicalities by merely hearing them. The summation of the state pictures the defendant as a man too dangerous for society to permit to roam among it. The defense, on the other hand, pictures him as anything from the victim of mistaken identity to a man around whom circum­ stances have woven dastardly a “plot." Since this summation is part of the proceedings, the press may print it although it should give both pictures. The jurors are the persons who must pass on the guilt or innocence of the defendant, and the reporter, when the jury files out, should not speculate on what the verdict will be. The jury deliberates in secrecy and any attempt of a paper to estab­ lish a “pipe line” into the jury room may be held to be contempt. Reporters frequently have attempted to establish signals with a bailiff so that when the jury files in with its verdict that official, by pulling an ear, twitching his nose, holding up one or two fingers, or maybe coughing, tips off the verdict. The verdict is generally written and handed by the foreman to the clerk of the court for passing up to the judge. Bailiffs are not supposed to know what the verdict is until it is read, but most of them have mysterious ways of discovering the jury's decision before it comes into court. In the trial of Bruno Richard Hauptmann for the kidnaping of the Lindbergh baby, it is generally assumed that press ser­ vices made arrangements for a tipoff. The Associated Press, however, flashed the verdict as life imprisonment when it actu­ ally was death. ^ A paper which makes such advance arrangements and gets mixed up in signals may have to pay for its folly. Should it appear on the streets with a story that the defendant was found guilty when actually he was acquitted, he probably has a good case in libel. The paper could not depend upon a defense of privilege because in the eyes of the court the tipoff was just the “gossip” of a private citizen.

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A convicted man has the right of asking for a new trial and then appealing to a higher court if it is denied. It may be a year or two from the time the verdict is returned until the case is settled finally. For that reason, the paper assumes some risk in calling a man a thief or murderer because the jury found him guilty. If he wins a new trial, he may be acquitted and therefore is not a thief or a murderer. Until all avenues of ap­ peal have been lost, the safest reference for a newspaper is to say only that he was “convicted on a charge of ....................” The only safe time to call a man a slayer or murderer is in the story of his execution. Civil Suits Since a civil suit is a dispute between private persons and not between the state and an individual, the coverage of such cases differs from that of a criminal trial. The actual courtroom privileges are the same. But a civil suit starts with the filing of a complaint or a petition and not with an arrest. The moot question in law is how much privi­ lege, if any, attaches to the complaint and the answer. An individual in his complaint sets forth certain allegations or grievances which he says he has suffered at the hands of the other. Perhaps he is a store owner and charges a customer has failed to meet payments on an article. Or one motorist charges another wrecked his car and will not pay for repairing it. One corporation may want damages from another for a wrong it alleges the defendant corporation did to it. The causes of a civil suit are as numerous as the activities of man. The complaint is filed with the clerk of the court or with the court official designated to receive such papers. The defendant is given a specified number of days to answer or suffer judg­ ment against it by default. The defendant in his answer may say the charges are too general and ask for a bill of particulars. The plaintiff then must file these details. Again, the defendant is given time to answer them. He may deny them or admit they are true but that they do not constitute any grounds for action. In legal language, he demurs, and the court must pass upon it. If the court agrees, the case is dismissed with or without prejudice.

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If dismissed without prejudice, the plaintiff usually has the right to file a new complaint if he wishes. All this maneuvering is called pleadings. The purpose is to cut away all extraneous problems so that the trial can be held upon pre-determined issues. It’s expensive and time con­ suming to conduct a trial, and the courts want to be economical of both, as well as to expedite justice. The general rule that a proceeding becomes privileged only when it “comes to the attention of the court” is not of much help to the reporter because jurisdictions differ on the inter­ pretation of that clause. Moreover, in the past ten or fifteen years some courts seemingly have reversed earlier stands. The federal courts hold that the filing of a complaint is a judicial proceeding a n d e n t i t l e d f n qualified privilege. A paper, therefore, may print all allegations set forth. Courts in Nevada, Pennsylvania, and perhaps Kansas and Kentucky, have indicated they regard pleadings as privileged. Ohio and Georgia have statutes conferring privilege, and a Texan law seems to have the same effect. N ew York courts apparently have swung away from an earlier stand that denied privilege to these reports. (6) Colorado, Louisiana, Massachusetts, Michigan, Minnesota, and Rhode Island, at least on the basis of early decisions, deny privilege to pleadings. A plaintiff and defendant, in all juris­ dictions, are held to be addressing themselves to the court, and therefore, they have privilege in their complaints and allega­ tions. Many times, these pleadings contain sensational and even reckless charges since the parties want to “put their best foot forward.” The tendency seems to be that many jurisdictions are coming around to the viewpoint that qualified privilege should be accorded to pleadings, but as in most all phases of law, this trend is advancing slowly. In a jurisdiction where qualified privilege is denied or in doubt, a reporter may print that “John Jones today filed suit against Robert Smith for $25,000 damages for injuries Jones said he suffered in an automobile accident.” H e might go on to give the reported time and place of the accident. But if the complaint says “Smith was driving while drunk” or “was driv-

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ing in a reckless and negligible manner” the paper which prints it, in absence of specific protection, should be prepared to prove it. And a paper seldom can do that. If the defendant files a demurrer, and the court sustains or rejects it, the case is now a judicial proceeding and may be re­ ported. Safety, then, comes when a judge acts in the case. Juvenile Court One of the innovations in our legal system in recent years has been the establishment of separate courts to deal with boys and girls. In small counties with only one judge and probably only one courtroom, the same man presides in juvenile court, but the procedure is vastly different from that of an ordinary criminal or civil trial. In jurisdictions large enough to warrant a separate judge for juvenile court, he is chosen largely because of his friendliness and sympathy toward young people rather than for his ability in law. Society is concerned more with preventing a youth from blighting his whole life with one misstep rather than with meting out punishment. Juvenile court sessions are usually more informal than other trials and may even be held in the judge’s chambers. Many states, by law, as will be pointed out later, restrict the publica­ tion of names of offenders below a certain age—generally 16 years old. The press often is barred from juvenile court sessions or if permitted to be there, is circumscribed in its reporting. The custom is for the press to be permitted to publish nothing but the disposition of the case. If a paper obtains testimony given in a juvenile hearing and publishes it despite a statute or judi­ cial decision to the contrary, it is open for a citation for con­ tempt. Should the testimony be defamatory, it has no defense but truth. Divorces Publication of divorce proceedings is a moot question in many jurisdictions. Some states, by law or judicial interpretation, re­ strict the printing of"charges filed in a divorce petition or the testimony given at the hearings. The awarding of a decree, however, becomes public property.

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Many contested divorces are heard by special masters ap­ pointed by the court. A lawyer, sitting as a special master, has most of the prerogatives of a judge on the bench. H e can main­ tain decorum through use of the contempt power and may sum­ mon witnesses by having the court issue subpoenas. If law or judicial decision bars reporters, the special master can prevent their attendance. Testimony drawn from divorce witnesses, especially salacious statements, may later be impounded by the court along with details of property settlements and other material relating to the case. The clerk of the court, or any designated official, keeps this information under seal and it may not be examined without permission of the court. Only the attorneys or interested par­ ties are likely to receive permission to examine these records. In some states, the laws or decisions regulating divorce hear­ ings, are so general as to lead to disputes in their interpretation. For example California has a law which seems to prevent publi­ cation of both pleadings and testimony. (7) Despite this law, the press seems to suffer no handicap in reporting divorce hear­ ings of actresses who elect to receive their decree in California. A Superior Court judge in Los Angeles refused a request of the plaintiff that the hearing be closed to the press. (8). Wills In most states, wills become public property as soon as they are filed for probate. The next of kin or the family lawyer takes the will to the division of court variously known as or­ phan’s, probate, or surrogate’s court. A will usually names an executor whose duty is to see that provisions of the document are carried out. If the deceased left no will, the courts will appoint an administrator to settle the estate and see that it is divided according to the statutes governing such cases. In large estates, or in estates in which heirs or creditors are disputing claims, the executor or administrator may file periodi­ cal reports with the court to show what he has done. The executor or administrator is discharged when the court accepts his final report.

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These periodical or final reports also may be published. A few states, notably Colorado, restrict this information until ad­ mitted in open court. (9) Other Court Proceedings Besides ordinary criminal, civil, and juvenile trials, courts, as indicated earlier, hear equity suits, contests over wills, guardian­ ship cases, and a variety of other legal actions. Much of the time of the courts also is taken up with argu­ ments, motions, and other activities. Sometimes these actions are more newsworthy than an actual trial. One murder trial produced stories that rated only inside pages. But after the defendant was convicted, counsel charged that one juror, when he received a letter to report for duty, had expressed publicly his pleasure because he wanted a chance to hang that fellow. The hearing on this charge made front page news. Most arguments and motions are made in open court. The only people present, however, may be the judge and the lawyers. But as far as the press is concerned, it is a hearing and may be reported with qualified privilege. The judge who in his cham­ bers signs a decree or grants a motion is engaged in a “legal proceeding.” Counsel for a man convicted of murder or other felony may visit a judge at his home or his vacation resort and obtain a writ staying execution or taking jurisdiction in the case. No matter where the judge is at the time, his action is effective and the press can report it. The lawyer can hope for such a writ or stay only if he can show sufficient reasons. Usually this reason will consist of some new evidence that just came to the lawyer’s attention. It may be evidence that another person committed the crime charged against his client. If the judge releases details from the petition, they, too, may be printed. In rare situations the petition might be of only a general nature, but later the attorney may tell a reporter that evidence shows another person committed the crime. Should the paper print this fact along with the person’s name, all of which it obtained from the attorney, it could not claim privilege

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since this information was not in the petition submitted to the judge. Privilege is possessed only by the material upon which the judge has acted. Court Records Most states by law have designated court records as public. These statutes apply to completed records such as judgments and decrees handed down, and the verdicts in trials. The docket on which is listed coming trials also is public. The transcript and record of a case received by a federal appellate court for review are considered public. Most state jurisdictions do not go this far, but generally the briefs filed by counsel in an appeal to a higher state court may be printed. From the petition filed with the original court in support of a motion for a new trial and from subsequent briefs filed with the state appellate court, a reporter as a rule obtains all the "news” of the proceedings. For Further Reading For the classification of federal judiciary records as public, see: U n ite d S ta te s C o d e A n n o ta te d , Title 28, 16:556. COURT DECISIONS For decisions in cases where the press exceeded its privilege, see: E v e n in g N e w s v. Bowie, 141 A. 416. Conroy v. Pittsburgh T im e s , 21 A. 154. For privilege in a justice of the peace court, see: Conner v. Standard Publishing Co., 67 N.E. 596. McBee v. Fulton, 47 Md. 403. Flues v. New Nonpareil Co., 135 N.W. 1083. For exceeding privilege in a justice court, see: Bathrick v. Detroit Post and Tribune Co., 16 N.W. 172. For privilege when only a warrant has been issued by a justice and a trial not yet held, see: Beiser v. Scripps McRae Publishing Co., 68 S.W. 457.

CHAPTER X

"Limits of Criticism —P ublic Officials a n d P erfo rm an ces'' The Right to Comment and Criticize Foreign writers and lecturers, after visiting the United States,' have never ceased to marvel at what they term the “outspoken­ ness” of Americans. In all age, income, and educational levels, Americans show little hesitancy in expressing their views, comments, and opinions. ' While the athletic board of a midwestem university was seeking a new football coach, one wag suggested that it hire the man who had sat back of him all season. “He not only knew more than the coach, but he made sure everybody around him realized it,” this wag wrote. Some writers have called America a “land of gripers and complainers,” but probably a more exact description is “a coun­ try of individual argufiers.” Every citizen seems to know more about managing the country than either the President or Con­ gress, and every sports fan considers himself more adept than the team manager or coach. Sophomores generally consider themselves more fitted to operate the university than the deans and president, and they often let the officials know about it in the college paper. Whatever may be the merits of this American trait, freedom of the press would be a misnomer if newspapermen and the public were not permitted to express their views. News and information alone are not enough to permit a democratic gov­ ernment to function. It would be an anomaly to insist that although people choose their own officials, they must abide in silence by any actions or decisions of those officials. 133

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Robert M. LaFollette, Sr., frequently expressed this concept in his oft-repeated “slogan” that “the will of the people shall be the law of the land.” Courts, in many decisions, have recog­ nized this right of the people to express their opinions. Justice Learned Hand summed it up this way: . . right conclusions are more likely to be gathered out of a multitude of tongues, than through a kind of authoritative selection. To many, this is, and always will be, folly; but we have staked upon it our all.” (1) The Supreme Court, speaking through Justice Black, has said: “. . . that (First) amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.” (2) Many have held it to be not only the right but also the duty of the press to comment and criticize. Justice Frank­ furter once held: . . The press does have the right, which is its professional function, to criticize and to advocate. The whole gamut of public affairs is the domain for fearless and critical com­ ment.” (3) Earlier, the Supreme Court of Kansas, not only expressed the same view but put its opinion into effect by reversing a $1,700 libel verdict obtained against a Manhattan, Kansas, news­ paper by a former mayor of that city. The former mayor sued for a story printed during his campaign for street and safety commissioner. Said the Kansas Supreme Court: “In connection with the coming municipal election, it is the right, if not the duty, (of the paper) to call to the atten­ tion of citizens, facts which he (the editor) honestly believed to be true, together with such comment as is reasonably con­ nected therewith, for the purpose of enabling the voterfc tg vote more intelligently. " “And if done in good faith, the publication is privileged even though some of the statements may be untrue or deroga­ tory to the character of the candidate.” (4)

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From street commissioner to President or Chief Justice of the United States, no American public official is presumed to be exempt from the withering rays of criticism. Those hold­ ing no office but who, nevertheless, come to public attention through works or deeds must expect their activities to be scrutinized by their fellow-men. The right to comment and criticize, like all rights of selfexpression, must be construed as neither absolute nor as un­ bridled license. As Justice Frankfurter has said: " B u t t h e p u b lic f u n c t io n ( o f c r it ic iz in g a n d a d v o c a t in g ) w h ic h b e lo n g s t o t h e p r e s s m a k e s i t a n o b lig a t io n o f h o n o r t o e x e r c is e th is f u n c t io n o n ly w it h t h e f u lle s t s e n s e o f r e s p o n s i­ b ility . W it h o u t s u c h a l i v e ly s e n s e o f r e s p o n s ib ilit y a f r e e p r e ss m a y r e a d ily b e c o m e a p o w e r f u l in s t r u m e n t o f in ju s ­ t i c e ” (5)

Through a sense of fair play and the necessity of maintain­ ing order in society, Americans either have drawn up, or by implicit understanding, have adopted “rules” to govern this right to speak one’s mind about the actions or works of another. The purpose of this chapter is to examine those “rules.” Criticizing Public Officials The man (or woman) who accepts a public job through ap­ pointment or election, finds himself living in a “goldfish” bowl. The law presumes no official, not even the robed judge on the bench, is infallible. The official is permitted as many errors in judgment as the voters will tolerate. If there is one general rule governing criticism of all officials, that rule is ifth e c o m m e n t m u s t a ssu m e th e m is ta k e o r a c tio n w d s \ p r o m p te d o n ly b y a n e rro r in ju d g m e n t o r b y th e officiaV s o w n ] c o n c e p tio n o f h o w h e s h o u ld h a v e p e r f o r m e d th a t p a r tic u la r J act. T h e c r itic is m m u s t n o t c h a rg e o r im p ly th a t th e a c tio n I w a s p r o m p te d b y d is h o n e s ty on th e p a r t o f th e o ffic ia l u n le ss j th e o n e w h o s a y s so is p r e p a r e d to p r o v e h is a ssertio n . ( The courts, too, draw a sharp distinction between opinions and facts although, unfortunately, they have never been able to define the terms with preciseness. Probably the simplest test is: will the reader know that the statement is the opinion

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or comment of the writer or will he conclude, from the wording, that a fact has been stated? Opinions usually may be defended as fair comment on a matter of public interest; a fact, in most jurisdictions, must stand or fall on the simple test as to whether it is true or false. If the city council decides to re-locate a street, my paper may accuse members of lack of vision, short-sightedness, misinter­ pretation of the wishes of the people, or of errors in judgment or planning. My paper could print: “In the face of a state survey showing that within three years Main Street will be the principal arterial highway of the city, council last night voted to spend all this year’s repair money on improving Second Street. This short-sighted policy of coun­ cil will cost taxpayers a goodly sum when heavy traffic starts rolling along Main Street.” At the most, council members are accused of lack of vision or errors in judgment. If my paper says, or implies, that the decision was prompted by “little gifts” to each member from the Second Street Improvement Association, the story is libelous. If county commissioners decide to paint the courthouse white, and my paper believes the color should have been brown, it may say so. But it cannot intimate the vote was prompted by the fact that one of the commissioners (or all of them) had relatives who sell only white paint. If the chief of police begins a drive against punch boards, my paper can be for or against the anti-gambling crusade. But it cannot say the chief acted in a fit of temper because he failed to win a prize on a board.

! Although more leeway is granted by law to criticism of | public officials than against those who hold no office, only un­ der a few circumstances can the private life of the official be brought into the story. Even th e n . those facts about his pri­ vate life had better be true if the paper wishes to avoid trouble. If the wife of the mayor divorces him, the decree becomes a public record and may be printed. But my paper cannot

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comment: “The mayor sits at City Hall trying to operate the municipal government and deal with citizens when he cannot even manage his own home.” If the mayor daily fines residents who fail to obtain licenses for their dogs, it is of public interest to know that his own pet roams the streets without a tag. But it is the mayor’s private concern whether he permits his dog to romp in the house or keeps him tied on the back porch. When a man becomes a candidate for a public office, the citizens should have all information necessary to assay his qualifications for that job. If true, it is pertinent for a paper to let readers know the candidate for city treasurer was twice convicted on embezzlement charges. A conviction on reckless driving charges, however, has nothing to do with his qualifica­ tion for treasurer. A candidate for liquor law enforcement officer has little / ground for complaint if voters are told he was convicted a number of times on charges of drunkenness. But if a candi­ date for sheriff likes to “take a nip” now and then, it’s his own business unless he is campaigning in a dry county. The m o re s of the community may be broken by a school teacher who spends some of his time in a tavern, but that is not a crime. The school board, however, can take cognizance of the teacher’s habits when his contract comes up for renewal. But a paper would have no license for saying the teacher lost his job for intemperance. The problem of how much latitude to permit in the criticism of public officials, including candidates for office, finds the sev­ eral states sharply divided into what is popularly known as the “majority and minority schools.” The majority school, in gen­ eral, holds that comment and criticism of a public official is no different from remarks--against an Individual. If the defamatory statement is false, the oTficial (or candidate) Tias cause for action. The late Chief Justice Taft once summed view: “. . . if privilege is to extend to cases then a man who offers himself as a candidate complainingly to the loss of his reputation . . .

up the majority like that at bar, must submit un­ with every mem-

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ber of the public, whenever an untrue charge of disgraceful con­ duct is made against him, if only his accuser honestly believes the charge upon reasonable ground. W e think that not only is such a sacrifice not required of everyone who consents to become a candidate for office, but that to sanction such a docrtrln e would do the public more harm than good . . . the danger that honorable and worthy man may be driven from politics and public service by allowing too great latitude in attacks upon their character outweighs any benefit that might occasionally accrue to the public from charges of corruption that are true 1in fact, but are incapable of legal proof.” (6) Another federal court, in deciding a similar case, has made plain just what judges in the majority jurisdictions regard as be­ yond the bounds of permissible criticism. “. . . t h e d is t in c t io n m u s t b e d r a w n b e t w e e n c o m m e n t a n d c r it ic is m , a n d u n t r u e c h a r g e s o f f a c t s c o n s t it u t in g a c r im e or d is g r a c e f u l c o n d u c t . I t is o n e t h in g t o p a s s s e v e r e c r itic is m u p o n , o r t o d r a w e v e n e x t r e m e in f e r e n c e s f r o m a c k n o w le d g e d f a c t s , o r t o i n d u lg e in in t e m p e r a t e d e n u n c ia t io n , e v e n t h o u g h b it t e r , a n d q u it e a n o t h e r t h in g t o a s s e r t e x i s t e n c e o f p a r tic u la r a c t s o f c r im in a lit y o r o f s h a m e f u l m is c o n d u c t u p o n t h e c a n ­ d id a t e ’s p a r t.” (7)

The majority school, however, does not insist that news­ papers turn out “poker face” comment or editorials. As a New York court has said: “Mere exaggeration, slight irony or wit, or all those delight­ ful touches of style which go to make an article readable, do not push beyond the limitations of fair comment. Facts do not cease to be facts because they are mixed with the fair and ex­ pectant comment of the story teller who adds to the recital a little touch by his piquant pen.” (8) Maine courts, apparently, have extended the majority view­ point to its widest latitude. They have held: . . a n y v o t e r o r o t h e r p e r s o n h a v in g a n I n te r e s t in t h e e l e c t io n m a y f u l l y a n d f r e e l y c o m m e n t a n d c r i t ic i z e h is (th e c a n d id a t e ’s) t a le n t s a n d q u a lif ic a t io n s m e n t a ll y a n d p h y s ic a lly , f o r t h e o f f i c e h e s e e k s . . . . E v e n h is f a u lt s a n d v i c e s , in s o fa r a s t h e y n e c e s s a r ily a f f e c t h is f it n e s s f o r t h e o f f i c e , m a y b e in v e s t ig a t e d a n d c o m m e n t e d u p o n . H i s p r iv a t e c h a r a c te r ,

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h o w e v e r , is o n ly p u t a t is s u e s o fa r a s h is q u a lif ic a t io n s a n d fitn e s s f o r o f f ic e m a y b e a f f e c t e d b y it.” (9)

The majority viewpoint, then, can be summed up as requir- \ mg: (1) the facts be true, and (2) references to the candidate’s private life, true or false, must have a direct bearing on his fitness for the office he seeks. Jurisdictions generally classified as being in the majority school are: Alabama, Arizona, Delaware, the Federal jurisdic­ tion, Florida, Georgia, Illinois, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Ne­ braska, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Vir­ ginia, Washington, West Virginia, and Wisconsin. The minority school believes that the newspaper should have \ privilege for comments based on probable ^ause although they \ may not be true. Privilege, however, is destroyed if the paper’s i motive is other than a desire to enlighten the electorate. Newspapers in the jurisdictions which permit such privilege should have a reasonable belief that the charges may be true. The press owes that responsibility to its readers despite any legal protection it may enjoy for untrue statements. The minority school feels that often the newspaper comes into possession of facts which it believes are true but which it cannot substantiate by legal proof. These facts may be of vital public concern, but the community never would learn about them if fear of libel prevented their publication. This is true especially of reports that circulate during election campaigns. A California court has expressed it this way: “U n d e r p r o p e r c ir c u m s ta n c e s t h e in t e r e s t a n d n e c e s s it ie s o f s o c ie t y b e c o m e p a r a m o u n t to t h e w e lf a r e o r r e p u t a t io n o f a p r iv a te in d iv id u a l, a n d t h e o c c a s io n a n d c ir c u m s ta n c e s m a y fo r t h e p u b lic g o o d a b s o lv e o n e fr o m p u n is h m e n t fo r s u c h c o m ­ m u n ic a tio n s e v e n t h o u g h t h e y b e f a ls e .” (10)

Another California court, in finding for the newspaper in a libel suit growing out of a cartoon depicting a police chief said: “If the publisher of a newspaper honestly believes that a public officer has committed a crime of a nature which would

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indicate that he is unfit for the office he holds, we think he is not liable for damages under the code (California Civil Code), in a civil libel action, when, without malice, and so believing, he publishes a statement to that effect to the community served by the officer.” (11) States grouped with the minority school are: California, Georgia, Iowa, Kansas, Minnesota, N ew Hampshire, North Caro­ lina, Pennsylvania, South Dakota, Utah, and Vermont. tinority jurisdictions, then, the requirements to estabe are: e should be reasonable evidence for assuming the fcharges are true, (2) publication must not be prompted by spite for a mere desire to “smear” a candidate or official, (3) the story | should be such that, if it were true, it would be fair comment public matter and hence entitled to privilege* summary of some decisions will show how the two schools operate. In an Eastern state, a nominee withdrew a few days before election, leaving his party without a candidate for that office. The state chairman of his party said the sudden with­ drawal had the “earmarks of another Jones affair.” Many re­ porters failed to look up the “Jones affair” in their files before printing the chairman’s statement. About 25 years before, another nominee of the same party also had retired from the race suddenly. Later, it was proved he quit after the candidate of the other party had promised him a certain job if he withdrew. Comparing the new case with the “Jones Affair,” implied that the candidate this year had “made a deal” with the opposition. Such an action is repugnant to the American mind and in the majority states, to accuse a man of “selling out” is libelous. Action, however, was started against only one paper which settled out of court. Had the same story been printed in a state adhering to the minority rule, the paper could have defended it. Arizona courts held libelous a story falsely imputing a crimi­ nal offense to a public official. (12) An Oregon paper which called a political leader a “double crosser” also lost a libel ac­ tion. (13) A Michigan court, in deciding for the plaintiff in a

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libel suit, held: “. . . this privilege (to comment or discuss pub­ lic questions) is limited, and does not extend to protect against false statements, unjust inferences, or imputations of unworthy motives.” (14) On the minority side, a charge in a newspaper that a city treas­ urer, then seeking re-election, had failed to account for some city funds and a hint that embezzlement was involved was held not libelous although later the accusations were proved false. (15) A North Carolina paper won a suit based on its story, mostly false, that a school board chairman was misusing school funds. (16) Drunkenness is a difficult charge to prove legally. Even socalled experts on the subject fail to agree since the amount of liquor that makes one man intoxicated may only “mellow” an­ other. A Pennsylvania paper, however, which charged a police chief with being drunk while on duty, won a libel suit in which the court said it was not liable “if there was probable cause for their comments and no proof of express malice, even though the statements are not strictly true in all respects.” (17) An­ other Pennsylvania case involving drunkenness of an officer was dropped before going to trial. The story said the chief had been shot in a taproom brawl. He vigorously denied it and demanded a correction. The next day the paper had a head: “Chief not shot, but half shot.” %

Although public officials are fair game for comment and criticism, the newspaper must not regard them as “sitting ducks.” Fair play and a sense of responsibility must guide the editor. Persons in Public Life

^

Under the American political system, a number of men and women exercise power without holding office. Political bosses, for example, may never go before the voters, yet their influence may sway elections. Other men and women are quasi-public figures and almost like “officials without portfolio.” A man who heads the prin­ cipal industry in a city, a woman active in club or civic affairs, the non-paid chairman of the Community Chest, and others, all may exercise considerable influence in public affairs without holding office or being formally affiliatecf with a political party.

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In a third class of these public figures are women such as [rs. Eleanor Roosevelt or men such as former President Her^ bert Hoover. Or Bernard Baruch, for years considered the “elder statesman” adviser to administrations of both major par­ ties. Below them, on regional, state, and community levels, are many similar men and women. $* r\ 5^ interesting legal problem is how do these men and women ^ ^fit into either majority or minority rules governing criticism cv- v I o f their actions and talks? ^The trend is for the courts to reV I gard these men and women as having a quasi-public character But this tendency is not yet so general nor so pronounced as to $ warrant a paper printing defamatory statements about them. Their actions, however, if not their motives, can be criticized 7^ *

If a man in public affairs^advocates spending more money to help post-war Europe, my paper can freely_comment ad­ versely on the proposal. But I could hardly defend, except on ground of truth, a statement that he favors more aid for Europe solely because he expects his company to “unload” on the gov­ ernment for delivery to Europe some products it cannot sell in the domestic market. I can mention that he suggests the United States should send more soap to Europe and that he heads a soap manufacturing company. But I must not pry too deeply into the probable motives for his suggestion. ^ A man who proposes that the community install parking meters must expect his suggestion to be criticized. My paper, however, must not infer that he is interested only because he holds, or hopes to obtain, a franchise to sell meters. A club woman who by speeches and letters to the editor campaigns to have a new school building located in a certain section of the city should not be surprised if some citizens or the newspaper disagree with her and tell her so. Such com­ ment should not carry the implication that her principal motive stems from her ownership of the only suitable tract of land in that section. The story could mention, however, that she owns a desirable plot in that area, and school directors could be in­ terviewed to see if she had made overtures to sell it. If so, these facts could be reported but without any inferences. After

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all, she may be a public-spirited woman and may sell the plot below its real value. The distinction that must be made between facts and con­ clusions may be illustrated roughly by an incident during World War II. After the Allies broke out of the Normandy beachhead and General Patton started his famous sweep, one dispatch said he was heading for Paris. The censor ordered this sen­ tence killed. But he permitted a revision which merely men­ tioned the General's last reported location and said simply: “180 miles to the east lies Paris.” Most of the recent court decisions on these quasi-public figures concern principally men and women holding political party offices or closely allied with political organizations. As one court said: T h e in t e r e s t w h ic h e v e r y c it iz e n h a s in g o o d g o v e r n m e n t r e q u ir e s t h a t t h e r ig h t b e n o t u n d u ly c u r t a ile d t o e x p r e s s h is o p in io n s o f p u b lic o f f ic e r s a n d p o lit ic a l le a d e r s , t o s e e k a n d c o n v e y in fo r m a tio n c o n c e r n in g t h e ir p la n s a n d p u r p o s e s a n d to f r e e ly c r it ic iz e p r o p o s e d m e t h o d s a n d m e a s u r e s .” (18)

The Supreme Court of Missouri, however, held there was privilege in a story which reported that a minister had lost his pastorate because of a girl who “couldn't resist his eyes.” In reversing a $25,000 verdict won by the minister against a St. Louis paper, the Supreme Court said: “E v e r y o n e w h o a s s u m e s t h e r e s p o n s ib ilit y o f le a d e r s h ip , e ith e r in p o lit ic s , in r e lig io n , o r in t h o u g h t s , p u t s in is s u e t o so m e e x t e n t h is a b ilit y a n d h is s in c e r ity . F u r th e r m o r e , t h e s e q u a litie s th u s b e c o m e o f im p o r ta n c e a n d in t e r e s t t o a ll o t h e r c itiz e n s a n d a n y n e w s p a p e r .h a s a r ig h t t o fa ir ly a n d r e a s o n ­ a b ly d is c u s s th e m .” (19)

\

A simple rule for the newspaper in handling criticism of public figures who hold no office, is to confine itself to com-"> menting only on their suggestions or proposals. There should be no excursions into their private lives nor into their motives al­ though, as will be pointed out later, it is permissible to review | their technical or other qualifications to permit an evaluation! of their suggestions. /

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Plays, Books, Movies, Concerts, and Public Performances When an individual offers himself or his works in a public performance, the phrase “in the limelight” takes on legal mean­ ing. Regardless of whether the offering is a poem the individual reads before the Parent-Teachers Association, a motion picture in which he stars, a book, a painting, or a new type of electric outdoor sign, the public has the right of freely criticizing and commenting. A manufacturer who brings out a new product also must take his chances with a public whose tastes and standards at times can be fickle. The public may not like the new soap with the secret cleansing ingredient nor the cigarette made by a new mysterious process. For those who “click” with their offerings, the financial or self-satisfaction rewards may be great; for those who find the public apathetic or hostile the results may be only heartaches and embarrassment.\ But in all cases, the author or creator loses his right to anonymity. It’s a tradition of the theatrical world that 12 New York critics can “make or break” any play. Only a few plays have gone on to successful runs after this unofficial “jury” has ren­ dered unfavorable verdicts. A few other plays which have won favor at the hands of these critics have proved financial failures. ^ But so influential is the power of these critics that many producers have closed their shows within a few performances after press notices were unfavorable. They did not want to risk possible further losses. Movies have exaggerated only slight­ ly the scenes in which they show producers and actors scram­ bling for the first editions of N ew York morning papers to read the verdict of these critics. Even the daughter of the President of the United States learned that social position does not save a performer from the caustic criticism by professional critics. One critic advised her to hurry and enjoy her singing career while her father still was in the White House, and another suggested she get married and confine her vocal talents to lullabies. >,

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Numerous court decisions have established a general rule for comments on public performances: a n y c r itic is m , n o m a tte r h o w ca u stic o r h itte r , is p e r m it t e d p r o v id e d no re fe r e n c e is m a d e to th e p r iv a te life of th e p e rfo rm e r . A concert artist may come to my city with an international reputation in music, circles. The 5,000 people in the concert hall may stand and applaud vigorously and call him back for half a dozen or more encores. Yet, I may with legal safety say it was a miserable performance, that his voice seemed to break on high notes, and that he and his accompanist at times went their separate ways. The public, if it disagrees with my comments, may stop buying my paper or write nasty letters to me, or the publisher may fire me on the ground I am incom­ petent, but the artist has no legal recourse. Legally, he still is helpless if my criticism should result in poor attendance at his concerts in other cities, or even cancellations. \ But I cannot say his miserable performance was due to his carousing the night before. Nor may I say that on the stage he has a “sweet personality” but at home has the manners of a beast. His private life is no part of the performance and must not be mentioned. This book will be reviewed and criticized by others in the field. Their verdict I must accept but, if they say it is filled with errors and fallacious reasoning because the author got all his legal knowledge from comic strips or motion pictures of court scenes, I do not have to sit in silence. I may even call any literary work just plain gibberish. But I cannot say or imply that the author stole his material from others. I must respect both the author’s personal life and his professional integrity. A college paper once referred to the lectures of a certain pro­ fessor as being so dry the classroom had to be sprinkled to keep down the dust. The editorial may have been reflected later in the writer’s grades, but not in any courtroom. The professor, however, would have had a case if the editorial suggested that all his ideas were obtained from “picking the brains of others.” As a sports writer, or just a fan, I can say with impunity that the manager made a bone-headed decision when he instructed

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the batter to bunt instead of permitting him to take a full swing at the ball. But I cannot imply that the manager was “bought” by the rival team nor that he was trying to lose the game be­ cause he was angry at the “front office.” (C r itic is m m u s t n e v e r im p lu u n e th ic a l, im p r o p e r . o r ille g a l c o n d u c t. (/jwSqA ^ Probably no more harsh criticism of a performance ever has been written than that by an Iowa newspaperman who reviewed the act of the once famous Cherry sisters. He called one of the sisters an “old jade,” another a “frisky filly of 40,” and the third “a capering monstrosity.” He further described them as “spa­ vined, stringhalt,” and with “legs and calves as classic in their outlines as the curves of a broom handle.” A paper which reprinted this review was sued, but a court held the comments were not libelous. (20) In its reasoning, the court said: “Fitting strictures, sarcasm, or ridicule, even, may be used, if based on facts, without liability, in the absence of malice or wicked purpose.” (21) Another court held it is not libelous to say a cartoonist “. . . evi­ dently has run out of ideas . . . and is not willing to attempt something new.” (22) A high school football coach lost a suit against a paper which said his team “is in dire need of a good drill in the rudiments of the game,” that it had been furnished a “paucity of plays,” and that plays and formations used were “antiques.” (23) Some alumni or townspeople may have concluded from the article that the coach was incompetent but the editorial cannot be con­ strued as making this charge. Personal references are permitted if they are connected with the performance or if these comments are made merely incidental to the review. If a lecturer bills himself as “the man who has built more engineering marvels than anyone else in the world,” I can point out, if true, that the only construction projects of his that are on record are a bridge across a Montana country creek and a silo on an Iowa farm. It is not libelous to tell the reader that the psychologist who will speak tonight on “Ten Ways to Hear a Child” is a bachelor. It was not libelous when some critics said Margaret Truman’s voice showed she was not ready for the concert stage, nor

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is it libelous when a sports writer says a player isn't of major league caliber. The qnalifiraHrmg q puf-flfc performer are a1\ynv